Rankin Inlet Housing Association v. Tatty, 2017 NUCA 3

ᓄᓇᕘᒥ ᐅᓐᓂᓗᖅᓴᖅᑐᓄᑦ ᐃᖅᑲᖅᑐᐃᕕᒃ Nunavunmi Apiqhuidjutainut Uuktuffaarutit Nunavut Court of Appeal Cour d'appel du Nunavut Citation: Rankin Inlet Housing Association v. Tatty, 2017 NUCA 3 Date : 2017-06-13 Docket: 18-15-006-CAP Registry : Iqaluit Between: Rankin Inlet Housing Association Appellant - and - Donna Tatty Respondent _______________________________________________________ The Court : The Honourable Madam Justice Karan Shaner The Honourable Madam Justice Shannon Smallwood The Honourable Madam Justice Sheila Greckol Memorandum of Judgment Appeal from the Judgment by The Honourable Mr.

Justice Mahar Dated the 6th day of July, 2015 Filed on the 4th day of September, 2015 ( 2015 NUCJ 23 , Docket: 18-14-401)

MEMORANDUM OF JUDGMENT (NOTE: This document may have been edited for publication) The Court: I. INTRODUCTION [ 1 ] The Rankin Inlet Housing Association (the “RIHA”) appeals from a decision on judicial review declaring a decision of its board of directors (the “Board”) invalid. II. BACKGROUND [ 2 ] The RIHA administers public housing in Rankin Inlet, Nunavut.

It does so based on need, in accordance with a management agreement with the Nunavut Housing Corporation as well as its own bylaws. [ 3 ] Need for housing exceeds available resources and therefore many applicants deemed eligible for public housing are placed on a waiting list.

The RIHA ranks applicants and assigns them a place on the waiting list based on a number of factors, including income and family size. [ 4 ] The bylaws contain a definition of “Applicant” at paragraph 1.1: 1.1 “APPLICANT” means a person residing in the community of Rankin Inlet, Nunavut, for 12 months or more, who makes application to the Housing Association for the purpose of leasing a dwelling unit. [ 5 ] Of note is that the Board considers individuals who have a residential lease in a community other than Rankin Inlet to be non- resident.

The Board also interprets this bylaw as clothing it with the authority to remove individuals from the waiting list. The latter point was not an issue in this appeal. [ 6 ] Donna Tatty applied for housing in 2012. At the time she resided in Rankin Inlet and had done so for more than the twelve months required by the bylaws. Her application was accepted and she was placed on the waiting list. She and her children stayed with friends and family, and sometimes the emergency shelter, while they waited for a permanent home. There is no dispute that her situation was precarious. [ 7 ] Ms.

Tatty went to Churchill, Manitoba, to take a course in early 2013. While there, she learned housing was readily available. She returned to Rankin Inlet and in April of 2013 advised the RIHA she would be moving to Churchill. Ms. Tatty was told she would lose her place on the waiting list if she relocated. She was also told she would have to re-qualify as a resident and would not be eligible to have her application considered for twelve months. There were two more meetings between representatives of the RIHA and Ms. Tatty.

On each of those occasions she was told she would lose her place on the waiting list if she moved to Churchill and that she would have to re-qualify and re-apply if she returned. Ms. Tatty did not indicate her move to Churchill was meant to be temporary on any of these three occasions. [ 8 ] Ms. Tatty left Rankin Inlet and went to Churchill. There, she signed a month-to-month lease for rental accommodations which took effect on May 1, 2013. The RIHA became aware of this while updating the waiting list. It removed Ms. Tatty from list and advised her of same.

[ 9 ] Ms. Tatty returned to Rankin Inlet in July of 2013 and she applied for housing with the RIHA. Her application was rejected because she no longer met the twelve month residency requirement. [ 10 ] Ms. Tatty appealed this decision to the Board and a number of arguments were advanced on her behalf. Chief among them was that she remained a resident of Rankin Inlet even after relocating to Churchill. She argued her stay in Churchill was temporary, meant to last only until housing became available in Rankin Inlet.

She submitted this was borne out by certain facts indicating an intention to remain a permanent resident of Rankin Inlet, including the maintenance of a mailing address in Rankin Inlet, a Nunavut driver’s license and health care insurance. She also pointed to a lack of any family, social or employment ties to Churchill. Her only connection there was the lease. [ 11 ] Ms. Tatty also argued the Board lacked the authority to remove her from the waiting list because there was no express mechanism in the bylaws allowing it to do so. [ 12 ] Finally, Ms. Tatty suggested the Board’s

interpretation of the bylaw breached the mobility provisions found at s. 6 of the Canadian Charter of Rights and Freedoms ,

Part I of the Constitution Act, 1982 , being

Schedule B to the Canada Act 1982 (UK), 1982, c. 11 (the “ Charter ”), and, moreover, that it discriminated against her on the basis of social condition. Neither of these issues arose in this appeal, although we note the Board rejected both of them in its decision. [ 13 ] The Board upheld the decision to reject Ms. Tatty’s application. She subsequently applied for judicial review. [ 14 ] The Chambers Judge distilled the issues into two questions: whether the Board had the authority to remove Ms. Tatty from the waiting list; and whether the Board’s decision that Ms.

Tatty was no longer a resident of Rankin Inlet was reasonable. With respect to the former, the Chambers Judge determined the Board had the authority to remove applicants from the waiting list so long as it did so reasonably and transparently. [ 15 ] With respect to the latter, the Chambers Judge first determined the standard of review was reasonableness. He then went on to review the Board’s decision. He stated the Board’s decision was “logically persuasive” but nevertheless found its conclusion that Ms.

Tatty lost her residency status by reason of relocating to and signing a lease in Churchill was unreasonable. [ 16 ] The Chambers Judge’s decision rested on his own finding, contrary to that of the Board, that Ms. Tatty’s stay in Churchill was intended as a temporary measure and thus, she remained resident in Rankin Inlet. He pointed to her lack of connection with Churchill and her precarious circumstances in support of his conclusion, stating: [22] It is a cliché that desperate deeds are done by desperate people.

I already accepted as a fact that the applicant had no reason to move to Churchill beyond the need for housing. She was willing to travel alone, with two children under school age, to a community where she had no one to help her as a result of compelling need. People, especially people in the circumstances of the applicant, want to stay in their home communities unless there is a good reason to leave. [23] The list of candidates for social housing is not made up of identical individuals with identical concerns.

Many applicants will have supportive family and friends and will have no trouble making temporary arrangements while they wait for housing. The only people who will take the extreme step of moving to a strange community for no reason other than the availability of housing are those people who have no other choice.

It would be tragically ironic if the very people most in need of social housing were to lose their access to it because of the dramatic steps they may take to find a place to live while they languish on a waiting list. [24] This is why I find that it was unreasonable for the RIHA to define the applicant as a non-resident on the basis of her temporary relocation to Churchill.

It would have been better if she had clearly indicated that her move was only while she waited for housing in Rankin Inlet, but clearly a temporary move is what it was. [ 17 ] The Chambers Judge declared the Board’s decision invalid and directed Ms. Tatty be placed back on the waiting list in a position consistent with her original application. III. GROUNDS FOR APPEAL [ 18 ] The RIHA advances two grounds of appeal. First, while it contends the Chambers Judge properly identified reasonableness as

the standard of review, he erred in its application. Second, the RIHA says the Chambers Judge erred in concluding the Board’s decision was unreasonable and substituting his own views. IV. THE STANDARD OF REVIEW ON APPEAL [ 19 ] The questions before us stem from the Chambers Judge’s selection and application of the standard of review in the disposition of an application for judicial review. On appeal, these attract a standard of correctness.

Agraira v Canada (Public Safety and Emergency Preparedness) , 2013 SCC 36 at paras 45-47 , [2013] 2 SCR 559 ; St Albert Housing Society v St Albert (Composite Assessment Review Board) , 2017 ABCA 129 at para 21 , 2017 CarswellAlta 729 . V. ANALYSIS A.

The Standard of Review Applicable to the Board’s Decision [ 20 ] The two standards of review are correctness and reasonableness. [ 21 ] The correctness standard applies in four circumstances: (1) true questions of jurisdiction; (2) constitutional questions respecting division of powers; (3) jurisdictional issues between competing specialized tribunals; and (4) questions of law of “central importance to the legal system as a whole and outside the adjudicator’s specialized area of expertise”.

Dunsmuir v New Brunswick , 2008 SCC 9 paras 58-61 ; [2008] 1 SCR 190. [ 22 ] Where correctness applies, the decision-maker must reach the correct conclusion and if it has not, the reviewing court must undertake its own analysis. In doing so, the reviewing court may substitute its own conclusion for that of the decision-maker. [ 23 ] Reasonableness, on the other hand, is a deferential standard.

As long as the decision is “reasonable”, that is, it is intelligible, transparent and falls within a range of possible, acceptable outcomes, it is not open to the reviewing court to substitute its own opinion for that of the decision-maker. The reasonableness standard is typically applied in questions of fact, discretion or policy, or in questions involving mixed fact and law which cannot be readily separated from each other. Dunsmuir , supra , paras 47-56 . [ 24 ] Ms.

Tatty submits assigning meaning to the phrase “residing in the community of Rankin Inlet” in the definition of “Applicant” is beyond the Board’s area of expertise. The Board’s decision was thus subject to the correctness standard on review and it erred in determining Ms. Tatty lost her status as a resident in Rankin Inlet by entering into a lease and relocating to Churchill. [ 25 ] Respectfully, we disagree. The Board was not defining a legal term of “central importance” to the justice system.

Rather, it was called upon to make a factual finding on residency and to interpret and apply its bylaws and policies in the context of administering a public housing program in a specific community. This unquestionably attracts the reasonableness standard. B. The Application of the Reasonableness Standard [ 26 ] Although the Chambers Judge identified reasonableness as the standard of review, the way he applied it is problematic and, in our view, led to an incorrect conclusion. [ 27 ] Inherent in the reasonableness standard is the possibility that there will be other conclusions open to the decision-maker.

From the reviewing court’s perspective, it may be that one or more of those other possible conclusions is preferable to that reached by the decision-maker. Unless the decision is unreasonable, however, it is not for the reviewing court to substitute its preferred outcome. It must, as a starting point, assess the decision and determine if it is within a range of reasonable outcomes, defensible in fact and law. If it is, it must defer to the decision and that is the end of the matter.

Dunsmuir , supra , paras 47-49 ; see also Art Hauser Centre Board Inc v Canadian Union of Public Employees Local No. 882 , 2008 SKCA 121 at para 33 ; 299 DLR (4th) 163.

[ 28 ] When it comes to the factual findings in particular, the reviewing court must first ask if they are reasonably supported by, or may be reasonably inferred from, the evidence before the administrative body. Again, if they can be, the reviewing court must defer to those findings and may not engage in reassessing the evidence or make its own findings. This is so even where the evidence can support a different conclusion.

See, for example, Casino Nova Scotia v Nova Scotia (Labour Relations Board) , 2009 NSCA 4 at para 44 ; 307 DLR (4th) 99. [ 29 ] Unfortunately, the Chambers Judge did not review the Board’s finding that Ms. Tatty was no longer residing in Rankin Inlet through the reasonableness lens. He made his own finding of fact on that issue without exploring first whether the conclusion the Board reached was intelligible, transparent and fell within a range of possible, acceptable outcomes. Accordingly, he erred in his application of the standard of review. C.

Was the Board’s Decision Reasonable? [ 30 ] The Board considered Ms. Tatty’s evidence that she had no intention of permanently relocating to Churchill and only went because she had no housing in Rankin Inlet. It had before it submissions from Ms. Tatty’s then counsel who argued, among other things, that the short duration of her stay in Churchill, her strong ties to Rankin Inlet and her stated intention to return would allow the Board to find she was still a resident.

It also considered her submission that the residency requirement did not necessarily require an applicant to be residing in the community continuously. [ 31 ] The Board nevertheless determined Ms. Tatty ceased to reside in Rankin Inlet when she relocated to Churchill. This conclusion is reasonably supported by the evidence. Despite her intentions and community connections, the Board had evidence that Ms. Tatty went to Churchill and entered into a lease agreement for housing. It was reasonable to take this as an indication Ms. Tatty was living in Churchill and not in Rankin Inlet. This is particularly so given Ms.

Tatty did not any time advise the RIHA her move to Churchill would be temporary before she did so, and in light of her meetings and telephone conversation with RIHA representatives, who had explained to her what the consequences of moving to Churchill would be. [ 32 ] Having found Ms. Tatty was no longer residing in Rankin Inlet, there was a reasonable foundation for the Board to conclude she no longer met the definition of “Applicant” and to remove her from the waiting list.

The Board gave intelligible and transparent reasons for doing so, which are summarized in the conclusion to its written reasons: Based on the foregoing, we have concluded that we must dismiss the appeal and decline Ms. Tatty’s request to have her name placed on the waiting list in the position it was before she left Rankin Inlet. We have concluded that Ms. Tatty was not simply visiting Churchill but had left Rankin Inlet to relocate to Churchill. As Ms. Tatty was no longer residing in Rankin Inlet, the Association was within its authority to remove her from the waiting list for housing.

We further conclude that the Association must have the authority to manage its own housing list and as such, must have the authority to remove names from the list when those individuals are no longer residing in Rankin Inlet, and therefore no longer qualify as applicants for housing. As noted above, to determine otherwise would lead to an absurd result where non-residents of Rankin Inlet would hold spots on the waiting list and would be entitled housing before individuals in need of housing who are actually residing in Rankin Inlet.

We cannot conclude this is the intention of the bylaw nor can we conclude that this is the intention of the management agreement, which specifies that housing is to be allocated based on need. [ 33 ] We conclude the Board’s finding respecting Ms. Tatty’s residency and, ultimately, its decision to remove her from the waiting list, was reasonable. VI. DISPOSITION [ 34 ] The appeal is allowed and the Board’s decision restored. [ 35 ] The RIHA indicated in its brief it does not seek costs against the Respondent and accordingly, none are awarded. Appeal heard on May 9, 2017

Memorandum filed at Iqaluit, Nunavut This 13th day of June, 2017 Shaner J.A. Smallwood J.A. Authorized to sign on behalf of Greckol J.A. Appearances: J. Rossall for the Appellant J. Morton for the Respondent