Kell v. Canada

K, an Aboriginal woman from the Rae-Edzo community in the Northwest Territories (N.W.T.) of Canada, bought a house from the N.W.T. Housing Corporation, with S her common law partner, as co-owners of the property. S subjected K to domestic violence, including economic abuse, over the subsequent three-year period. Following a request from S, a then board member of the Housing Authority, and without K’s knowledge, the N.W.T. Housing Corporation on instruction from the Rae-Edzo Housing Authority removed K’s name from the Assignment of Lease, making S the sole owner of the property. S then evicted her from the property while she sought protection in a shelter. K filed proceedings against S in the N.W.T. Supreme Court seeking compensation for domestic violence and loss of use of her home, fraudulently obtained by S, aided and abetted by the N.W.T. Government. S subsequently died, following which K’s lawyer initiated proceedings against his estate and the N.W.T. Housing Corporation. They offered K a monetary settlement but K refused as her key concern was regaining the property. The Supreme Court dismissed both proceedings for “want of prosecution.” Costs were imposed against K and subsequent appeals were unsuccessful. K 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. K brought a communication to the CmEDAW alleging violations by Canada of Articles 1, 2(d), 2(e), 14(2)(h), 15(1)-15(4), 16(1)(h) of CEDAW by allowing 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 failing to ensure that its agents afford women and men equal rights in respect of ownership and enjoyment of property. The Committee found that Canada was responsible for K 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 K had been discriminated against as a rural woman or prevented from residing in another property in the community. The Committee recommended that Canada compensate K 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 of domestic violence have effective access to justice.