Piercey v. Nunavut Housing Corporation, 2021 NUCJ 41

Nunavunmi Maligaliuqtiit NUNAVUT COURT OF JUSTICE Cour de justice du Nunavut Citation: Piercey v. Nunavut Housing Corporation, 2021 NUCJ 41 Date: 20211025 Docket: 08-20-532 Registry: Iqaluit Applicant: Margaret Piercey -and- Respondent: Nunavut Housing Corporation __________________________________________________________________ Before: Madam Justice Cooper Counsel (Applicant): M. Piercy (Self-Represented) Counsel (Respondent): S. Laurella Location Heard: Iqaluit, Nunavut Date Heard: March 26, 2021 Matters: Appeal pursuant to

section 87 of the Residential Tenancies Act, RSNWT 1988, c.R-5 REASONS FOR JUDGMENT (NOTE: This document may have been edited for publication)

I. INTRODUCTION [ 1 ] This is an appeal of an eviction order issued by the Rental Officer . II. BACKGROUND [ 2 ] The relevant facts of this matter are not in dispute. The tenant was an employee with the Government of Nunavut (GN), Department of Education. Subsidized housing was provided as a benefit of her employment. GN staff housing is administered by the Nunavut Housing Corporation (NHC).

The tenant remained in her position with the GN from October 2019 to August 2020, at which time her employment ended. [ 3 ] From August 21, 2020 to September 21, 2020, the tenant was employed as a casual employee with the GN Department of Education. That position did not provide housing. [ 4 ] From September 21, 2020 onwards the tenant has been employed with the GN Department of Health.

Housing is not provided as an employment benefit with this position. [ 5 ] On September 21, 2020 the GN served the tenant with a Notice to Vacate the premises effective September 28, 2020. [ 6 ] The tenant did not vacate the premises. [ 7 ] The tenant attempted to appeal the employer’s decision to the Appeals Committee of the Government of Nunavut. The Appeals Committee will only hear appeals which are supported by the Deputy Minister of the employee’s department.

The tenant did not have the support of her Deputy Minister so the appeal did not proceed. [ 8 ] The landlord applied to the Rental Officer for an eviction order, which was granted. The tenant appeals to this court. III. GROUNDS OF APPEAL [ 9 ] The tenant appeals on essentially three grounds: A. Discrimination: [ 10 ] The tenant alleges that the GN staff housing policy discriminates against single people. She states that single people are less likely to apply for positions that do not have staff housing as opposed to people in relationships, whose partners have housing. B.

Incorrect application of the staff housing policy:

[ 11 ] The tenant states that the GN staff housing policy was applied incorrectly and that she does qualify for staff housing. C. Compassionate grounds: [ 12 ] The tenant submits that she should not be evicted from the premises because there is a housing shortage in Nunavut and she does not have alternate housing, and because of the COVID-19 pandemic. IV. STANDARD OF REVIEW [ 13 ] There is a right of appeal from a decision of the Residential Tenancies Officer: 87.

(1) A landlord or tenant affected by an order of a rental officer may, within 14 days after being served with a copy of the order, appeal the order by originating notice to a judge. … Documentation

(4) On receiving a notice of an appeal, the rental officer shall file with the Nunavut Court of Justice all documents in the possession of the rental officer relating to the appeal and a copy of the reasons for the order. Evidence

(5) A judge hearing an appeal may receive any evidence, oral or written, that is relevant to support or repudiate any allegation contained in the appeal. S.Nu. 2011,c.6,s.24(5). [ 14 ] The applicable standard of review is that set out in the case of Housen v. Nikolaisen , 2002 SCC 33 ( see Canada (Minister of Citizenship and Immigration) v. Vavilov , 2019 SCC 65 , at paragraph 37 ). Where there is a statutory appeal from an administrative decision the standard of review on questions of law, including statutory

interpretation, is a standard of correctness. On questions of fact, including questions of mixed law and fact, the standard of review is palpable and overriding error. [ 15 ] The applicable standard of review is discussed in the decision of YWCA NWT v. Hashi , 2021 NWTSC 15 ; [29] In Vavilov , the Supreme Court of Canada revisited the legal framework for determining the appropriate standard of review for a statutory decision-maker. Now, when a court reviews such a decision on the merits, the reasonableness standard is presumed.

That presumption may be rebutted, however, where the legislation indicates that a different standard applies, either by specifying a standard of review or by including a statutory right of appeal. Vavilov , para 33 . As noted above, there is a statutory right of appeal from the Rental Officer ’ s decision at s. 87 of the RTA. [30] Where there is a statutory right of appeal, the appellate court must apply the standards of review set out in Housen v Nikolaisen , 2002 SCC 33 , [2002] 2 SCR 235 . These are first, correctness and second, palpable and overriding error.

Correctness requires the decision-maker to make a legally correct decision. It applies where the appellate court must decide questions of law, including statutory

interpretation and the decision-maker ’ s jurisdiction. Where a decision is incorrect, the appellate court is free to substitute its own opinion for that of the decision-maker. Housen at para 8 .

[31] Where the appeal includes questions of fact, or questions of mixed fact and law (where the legal issue is not readily extricable from the factual ones) the appellate court must apply the standard of palpable and overriding error. Housen , at paras 10, 19 and 26-37 . A palpable and overriding error is one that can be plainly seen. It is a deferential standard, the policy reasons for which were canvassed thoroughly in Housen .

Among other things, the appellate court is not considered to be in a better position than the original decision-maker to make determinations of fact. [ 16 ] The standard of review was again considered in St. Croix v Yellowknife Housing Authority et al , 2021 NWTSC 31 ; [18]

Section 87 of the Residential Tenancies Act provides for a statutory right of appeal and accordingly, I must apply the standards of review set out in Housen v Nikolaisen , 2002 SCC 33 , [2002] 2 SCR 235 : Canada (Minister of Citizenship and Immigration) v Vavilov , 2019 SCC 65 at para 33 . These standards are first, correctness and second, palpable and overriding error. Correctness applies where the appellate court must decide questions of law, including questions about the decision-maker ’ s jurisdiction.

Where a decision is incorrect, the appellate court is free to substitute its own opinion for that of the decision-maker. On questions of fact, or questions of mixed fact and law where the legal issue is not readily extricable from the factual one, the applicable standard is palpable and overriding error. This is an error that can be plainly seen. [ 17 ] The issues to be addressed in this matter require a consideration of both the legal regime and the facts. Accordingly, the standard of review requires that the court find the administrative decision maker has made a palpable and overriding error.

Deference to the administrative decision maker is required. A. Legislative Scheme: [ 18 ] The Residential Tenancies Act sets out the obligations and rights of residential landlords and tenants and governs disputes between residential landlords and tenants.

Such disputes are determined by a Rental Officer, appointed pursuant to the Act. [ 19 ] Residential tenancies that arise as a benefit of employment are recognized in various parts of the Act as being of a different character and are specifically exempt from various provisions. [ 20 ] In particular, the Act provides that if residential premises are provided as a benefit of employment, the tenancy agreement terminates when the employment relationship terminates. The termination of the tenancy agreement is automatic; the landlord does not need to apply to the Rental Officer for a termination order.

The tenant is given one week to vacate the premises. The relevant provisions are: s.. 48.

(1) No person shall terminate a tenancy agreement except in accordance with this Act.

(2) No landlord shall regain possession of a rental premises unless the tenant has vacated or abandoned the rental premises; or an eviction order has authorized the regaining of possession. s.49 (1) Where a tenancy agreement ends on a specific date, the landlord and tenant are deemed to renew the tenancy agreement on that date as a monthly tenancy…. (2) Subsection (1) does not apply

c) to rental premises provided by an employer as a benefit of employment. s. 56.

(1) Notwithstanding any other provision of this Act, where a tenant who was provided by his or her employer with rental premises during the employment of the tenant as a benefit of employment has had his or her employment terminated, or the tenancy of the tenant is terminated on the day on which the employment of the tenant is lawfully terminated.

(2) The tenant referred to in subsection (1) shall vacate the rental premises or caretaker’s unit not later than one week after his or her employment is lawfully terminated. [ 21 ] The legislative regime is not being challenged. V. ANALYSIS A. The GN housing policy is discriminatory. [ 22 ] As I understand the ground of appeal, it is that the GN housing policy, while neutral and non-discriminatory on its face, has a discriminatory effect in its application. This is known as adverse effect discrimination.

The basis of the discrimination would be family status. [ 23 ] This ground of appeal was not developed or addressed in oral argument. Other than the broad statement alleging discriminatory effect, there is no context or evidence provided for this ground of appeal. [ 24 ] Such issues cannot be decided in a vacuum ( Fraser v. Canada (Attorney General ), 2020 SCC 28 ). It is not possible for the court to undertake a proper analysis of this ground of appeal. B.

Incorrect Application of the GN Staff Housing Policy: [ 25 ] The GN Staff Housing Policy establishes an Allocation Committee which is responsible for assigning staff housing units according to set priorities. Indeterminate and term employees may be eligible for staff housing. Casual employees are not. [ 26 ] The priorities for staff housing are determined by reference to three categories: Category #1 - health/safety/security [ 27 ] These positions are necessary to provide essential services. The housing policy provides a non-exhaustive list which includes positions such as doctors, nurses, etc.

Category #2 - government operations [ 28 ] This includes positions necessary to deliver core government programs and services, such as teachers and management personnel. Category #3 - internal departmental operations [ 29 ] These positions are deemed necessary to support internal departmental operations in the delivery of programs and services.

[ 30 ] A Deputy Minister may prioritize allocations within their department outside of the three categories. The Deputy Minister of Human Resources has the final authority over the categorization and allocation of positions. [ 31 ] The tenant submits that the GN Staff Housing Policy was incorrectly applied. The tenant is an indeterminate employee and holds the position of Territorial Health Specialist with the GN. [ 32 ] She submits that this position falls into Category 2 of the GN Staff Housing Policy, as it is necessary for the delivery of core programs and services to the citizens of Nunavut.

She maintains that her position with the Department of Health is necessary to deliver core government programs and, accordingly, places the position in a Category 2 for housing allocation. [ 33 ] With respect, this is not a decision that is hers to make, nor is it a decision for the Court to make. It is a decision of the Staff Housing Allocation Committee. [ 34 ] The tenant was not mislead in this regard. Documentation evidences that the position she applied for and accepted was clearly advertised as not providing staff housing. This was reiterated at the interview stage.

The tenant acknowledges that she was aware at the time she applied for the position and at the time she accepted the position that staff housing was not provided. [ 35 ] An employee may appeal an eligibility rating to the Appeal Committee. Only those appeals that are sponsored by the employee’s Deputy Minister will be considered by the Appeals Committee. Despite vigorous lobbying by the tenant, her Deputy Minister did not support her appeal. C.

Compassionate Grounds: [ 36 ] The tenant submits that she should not be evicted because she does not have alternate housing and, as is well known, housing is very difficult to obtain. She states that if evicted she will be left homeless. The tenant has been paying the market rent for her unit since she left her employment with the Department of Education. [ 37 ] She also submits that it would be unsafe to relocate in the midst of the pandemic. [ 38 ] The court is all too aware of the dire housing shortage in Nunavut. The tenant is not unique in dealing with insecurity in housing.

But the compassionate grounds pleaded by the tenant apply to many. It is important that the staff housing allocation be seen as transparent and fair. [ 39 ] There is no basis upon which the eviction order can be quashed. To do so because of the personal circumstances of the tenant, which are shared by so many, would be arbitrary and would seriously undermine and erode any confidence in the staff housing allocation scheme. VI. CONCLUSION [ 40 ] The appeal is dismissed. [ 41 ] The order of the Residential Tenancies Officer is of full force and effect.

The tenant must provide the landlord with vacant possession of the unit no later than 5:00 pm on Friday, November 19, 2021. [ 42 ] The parties are to bear their own costs of this application.

Dated at the City of Iqaluit this 25th day of October, 2021 ___________________ Justice S. Cooper Nunavut Court of Justice