Tatty v. RIHA, 2015 NUCJ 23

Nunavunmi Maligaliuqtiit NUNAVUT COURT OF JUSTICE Cour de justice du Nunavut Citation: Tatty v. RIHA, 2015 NUCJ 23 Date: 20150806 Docket: 18-14-401 Registry: Iqaluit Applicant: Donna Tatty -and- Respondent: Rankin Inlet Housing Association ________________________________________________________________________ Before: The Honourable Mr. Justice Mahar Counsel (Applicant): Mark Mossey Counsel (Respondent): Michelle S. Theriault Location Heard: Iqaluit, Nunavut Date Heard: January 13, 2015 Matters: 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; Judicial Review REASONS FOR JUDGMENT (NOTE: This document may have been edited for publication)

I. INTRODUCTION [ 1 ] The applicant, Donna Tatty, asks for judicial review of a decision of the Rankin Inlet Housing Association [the RIHA] Board of Directors [the Board] made July 24, 2014, in which the Board upheld two earlier decisions of the RIHA after an appeal by the applicant. In these earlier decisions, the RIHA had removed the applicant from the waiting list for social housing as a result of what was determined to be a change in her residency and then rejected her subsequent application of July 22, 2013, on the basis of insufficient length of residency. II.

BACKGROUND [ 2 ] The applicant is an Inuit single mother of two very young children and a lifelong resident of Rankin Inlet, Nunavut. After the end of her relationship with the father of her children in 2009, she and her children went from one tenuous living arrangement to another. [ 3 ] In April of either 2011 or 2012, she applied for social housing, her application was accepted, and she was placed on the waiting list. [ 4 ]

Section 1.1 of the Bylaws of the RIHA require that an applicant must have been residing in Rankin Inlet for 12 months or more prior to making an application. For this purpose, an applicant will not be considered to have been resident in Rankin Inlet if they have either a mortgage or a residential tenancy agreement outside of Rankin Inlet. [ 5 ] The Bylaws are silent on the waiting list and its administration.

As a matter of practice, however, the RIHA takes the position that an applicant on the waiting list who obtains either a mortgage or a residential tenancy agreement outside of Rankin Inlet ceased to be a resident for their purposes and will be removed from the waiting list. Further, such an applicant will only be able to re-apply after waiting the requisite 12 months. This is the situation that the applicant found herself in. [ 6 ] The need for social housing in Rankin Inlet and Nunavut generally is dire.

At the time of the hearing of this application, there were approximately 100 households on the Rankin Inlet waiting list. The applicant and her children, therefore, continued to live in various unsatisfactory situations for some time after her application for social housing. [ 7 ] In February of 2013, the applicant’s position on the waiting list was number 16. While attending a parenting workshop in Churchill, Manitoba, she learned of the easy availability of public housing there.

She made an application, received housing, and relocated with her children to Churchill on May 10, 2013. [ 8 ] Prior to the move, in April of 2013, the applicant informed the RIHA of her decision to relocate. On three occasions she was informed that if she followed through on this, she would be removed from the waiting list and required to begin her residency from the beginning should she decide to return.

On these occasions, she gave no indication that the contemplated move was anything other than permanent. [ 9 ] There appears to have been an unfortunate breakdown in communication between the RIHA and the applicant on the occasions noted above. The applicant had no other reason for moving to Churchill other than the lack of available housing in Rankin Inlet. She had no friends or extended family there, no job or educational program to go to, and no supports available other than those normally provided by social services and welfare.

I accept as a fact, for the purpose of this analysis, that neither the applicant nor the RIHA explored the possibility of a temporary relocation as part of their discussions. She did not propose this solution, but neither was it offered to her. I also accept as a fact that the applicant would at all times have wanted to return to Rankin Inlet if housing became available to her. On the information provided, no other conclusion makes sense.

[ 10 ] Sometime soon after her arrival in Churchill, the applicant was informed that her name had been removed from the RIHA waiting list. On July 8, 2013, the applicant returned to Rankin Inlet, after spending less than two months in Churchill. It is not clear to me precisely why she did this. While it is suggested that her reason for doing so was her removal from the RIHA waiting list and a desire to re-establish her status in that regard, this does not fully explain her decision.

What I take from her return is that the applicant’s connection to Churchill was tenuous at best and that, in spite of obtaining housing in Churchill, her life there, alone with two small children, was predictably not easy, and that her real home has always been and continues to be Rankin Inlet. [ 11 ] After being informed that, in addition to losing her place on the waiting list, her previous application was no longer approved due to her relocation, Ms. Tatty attempted to reapply for social housing on July 22, 2013.

Her application was rejected because she had not been a resident of Rankin Inlet for 12 months following her return to the community on July 8, 2013. [ 12 ] Since her return to Rankin Inlet, Ms. Tatty has failed to secure reasonable accommodation and has essentially been couch-surfing, even spending some time at the women’s shelter. III. ISSUES [ 13 ] The Applicant raises five issues, which suggest differing standards of review: (i). Was the Board’s decision that Ms. Tatty was not a member of the RIHA reasonable? (ii).

Was the Board correct in determining that the RIHA possesses the statutory authority to remove applicants from the waiting list if they no longer reside in Rankin Inlet? (iii). Was the Board’s decision that Ms. Tatty was no longer a “resident” of Rankin Inlet reasonable? (iv). Was the Board’s decision not to undertake a 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 [Charter], analysis regarding a potential infringement of Ms. Tatty’s mobility rights under s. 6 of the Charter correct? IV. ANALYSIS [ 14 ] The Court was provided with extensive argument, both written and oral, on the above five issues by counsel for both the applicant and RIHA. I do not propose to cover these arguments in detail, because I did not find most of the issues helpful in resolving this case. [ 15 ] The Bylaws in question do not contain a mechanism for removing applicants from the waiting list.

The Bylaws appear to create “members” out of both approved applicants and tenants. There are procedures dealing with actual tenancies, but none for would-be tenants after approval. Counsel for the applicant suggests that this obvious oversight creates a situation where the RIHA cannot remove applicants from the waiting list. I reject this suggestion. The RIHA has broad discretion to determine eligibility for social housing and placement on the waiting list. This discretion would clearly extend to making ongoing determinations about eligibility on the basis of changes in circumstances.

There is no need for a formal mechanism for this in the Bylaws because it is an integral aspect of the day-to- day duties of the RIHA. [ 16 ] Following this reasoning, the RIHA clearly has the statutory authority to remove applicants from the waiting list as well as to rescind their approval on an ongoing basis. The RIHA has the power to approve applications and place applicants on the waiting list and the RIHA, therefore, has the power to remove applicants and rescind approvals. The only requirement is that this be done reasonably and transparently.

The RIHA, therefore, has the authority to remove applicants from the housing list for social housing in Rankin Inlet because they no longer reside in Rankin Inlet.

[ 17 ] The real issue in this case is a slightly expanded version of issue number 3 – the reasonableness of the RIHA’s decision to define Ms. Tatty as a non-resident and the reasonableness of the consequences that flowed from this decision. [ 18 ] The standard of review I must apply to this issue is reasonableness. This is a mixed question of statutory

interpretation and fact, specifically dealing with the exercise of a fairly broad discretion by the RIHA. There is also a significant amount of expertise brought to bear by the RIHA, a point on which I disagree with counsel for the applicant, which also suggests the more deferential standard of review. Under this standard of review, I must not simply replace the decision of the RIHA with my own, but rather ask whether the decision at issue is one of the possible reasonable outcomes suggested by the law and the facts.

As in Dunsmuir v New Brunswick, 2008 SCC 9 , [2008] 1 SCR 190 , at para. 47 : …certain questions that come before administrative tribunals do not lend themselves to one specific, particular result. Instead, they may give rise to a number of possible, reasonable conclusions. Tribunals have a margin of appreciation within the range of acceptable and rational solutions. [ 19 ] On its face, the decision by the RIHA is logically persuasive.

The Bylaw is silent on the consequences to an applicant of moving away from the community, but since residency is required for approval, it is only sensible to assume that no longer living in the community would result in the loss of “resident” status and removal from the approved pool of applicants. This makes sense and I can easily understand why the RIHA and the Board felt compelled to follow this reasoning. [ 20 ] There is, however, an alternate and more compelling analysis.

While the RIHA has the ability to remove applicants from the approved list due to a change in residency, which in most cases of relocation would be entirely sensible and reasonable, the decision to define an applicant as non-resident simply because they enter into a residential tenancy in another community bears further scrutiny. [ 21 ] As has already been noted, there is a desperate need for social housing in Nunavut. Many people are living in overcrowded and insecure conditions due to a lack of available, adequate housing.

The local housing authorities face the unenviable task of dividing up a resource that doesn’t answer a fraction of the need for it. It is no surprise, therefore, that many people in need find themselves languishing on waiting lists for a long time before they are finally given somewhere to call home. [ 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. [ 25 ] It also seems counterintuitive that a resource like easily available housing in another community could not be utilized in a more systematic way, but I leave that to agencies better able to address that sort of thing than the court. V. CONCLUSION

A. Decision [ 26 ] I declare the decisions of the Rankin Inlet Housing Association Board of Directors dated July 17, 2014, and July 22, 2013, as invalid for the above reasons. [ 27 ] I hereby order, by way of mandamus, that Ms. Tatty be placed back on the RIHA housing list in a position consistent with her original application. B. Costs [ 28 ] While I have found the end result to be unreasonable, the Rankin Inlet Housing Association attempted at all times to be fair to the applicant. I decline to order costs. Dated at the City of Iqaluit this 6th day of August, 2015 ___________________ Justice A. Mahar Nunavut Court of Justice