Nukapiak. v. RIHA, 2014 NUCJ 39

nunavuumi iqkaqtuijikkut NUNAVUT COURT OF JUSTICE La Cour de justice du Nunavut Citation: Nukapiak. v. RIHA, 2014 NUCJ 39 Date: 20141217 Docket: 18-14-540-CVC Registry: Iqaluit Applicant: Crystal Nukapiak -and- Respondent: Rankin Inlet Housing Association (RIHA) ________________________________________________________________________ Before: The Honourable Madam Justice Cooper Counsel (Applicant): Gloria Song Counsel (Respondent): Michelle Theriault Location Heard: Iqaluit, Nunavut Date Heard: December 11, 2014 Matters: Judicial Review; Application for Interlocutory Injunction REASONS FOR JUDGMENT (NOTE: This document may have been edited for publication)

I. INTRODUCTION [ 1 ] The applicant has commenced an application for judicial review of a decision made by the Rankin Inlet Housing Association (hereinafter referred to as the “Housing Association”). The applicant states that the Housing Association erred when it declined to add her name as lessee on an existing tenancy agreement between her grandmother (since deceased) and the Housing Association. [ 2 ] The applicant seeks an interlocutory injunction pending the hearing of the judicial review.

She seeks an injunction requiring the Housing Association to lease the housing unit to her or, alternatively, prohibit the Housing Association from leasing the unit to anyone else pending a final determination on the judicial review application. II. BACKGROUND [ 3 ] The applicant is from Rankin Inlet and, prior to January, 2013, was on the waiting list for public housing in that community.

Like many families with young children, the family struggles with finding stable, suitable housing and, it seems at least partially in response to housing pressures, in January of 2013 the family relocated to Churchill, Manitoba. They were able to obtain housing in Churchill on a month to month basis, effective January 1, 2013. The material filed indicates that this tenancy agreement remained in place until October 31, 2013. [1] In June 2013, the applicant and her family returned to Rankin Inlet and in September 2013, they moved in with the applicant's grandmother.

They remained in that unit until shortly after the grandmother died in September, 2014. Just prior to her death the grandmother wrote a note to the Housing Association requesting that the applicant be added as a lessee to her Tenancy Agreement. [2] In September 2014, the applicant applied for and was accepted for social housing in Rankin Inlet and her name was placed on the waiting list. [3] The Housing Association has filed an Affidavit of the Housing Manager which essentially sets out three reasons why the applicant was not permitted to be added to her grandmother's tenancy agreement. They are: 1.

The Housing Association does not add lessees to Tenancy Agreements as most if not all families in social housing have family staying with them. The lessees are determined when the tenancy agreement is entered into. 2. A person must be resident in Rankin Inlet for at least 12 months prior to applying for social housing. For the purposes of eligibility for social housing the Housing Association does not consider someone as resident of the community if they have a tenancy agreement in another community.

Accordingly, the applicant was not a resident of Rankin Inlet for the purposes of social housing until October 31, 2014, as she had a tenancy agreement in Churchill until October 31, 2013. 3. The Housing Association maintains a waiting list and housing units are allocated according to the waiting list. Residency is only one factor in determining a person’s place on the waiting list. III. ANALYSIS [ 4 ] The three part test to be applied on an injunction application is well known. It is: 1) Is there a serious issue to be tried?

2) Will the applicant suffer irreparable harm if the injunction is not granted? and 3) Where does the balance of convenience lie? [ 5 ] All three factors of the test must be satisfied for an injunction to be issued. A.

Is there a serious issue to be tried? [ 6 ] The standard to be applied at this stage varies depending on whether the Court is considering a mandatory injunction directing the premises be leased to the applicant, in which case the applicant must establish a prima facie case, or a prohibitive injunction preventing the premises to be leased to someone else, in which case the applicant must establish that the matter is not frivolous or vexatious. [ 7 ] The issue to be determined is the proper

interpretation of the term “residency”. There can be different criteria for determining residency for different purposes. The Affidavit of the Housing Manager sets out the criteria that the Housing Association uses in determining residency for the purpose of allocating housing units. The applicant does not allege that the specified criteria were not applied in her case or that they were applied in some improper manner. She does not allege that the criteria discriminate in some fashion or that they are in place for some improper motive. From the material before me it seems that she simply disagrees with them.

At this stage, I am unable to find that the applicant has established a prima facie case, however, I am not satisfied that the application is frivolous or vexatious. B. Will the applicant suffer irreparable harm if the injunction is not granted? [ 8 ] The applicant's affidavit speaks to the difficulties of her current situation, which I accept and empathize with. They are, unfortunately, the living circumstances of far too many people living in Nunavut.

However, based on the material before me, even if the applicant were successful on her judicial review application, her living circumstances would not necessarily change. There are two reasons for this. First, it is likely that upon a successful judicial review application, the Court would quash the decision of the Housing Association and send the matter back for reconsideration rather than directing that the applicant be permitted to live in the housing unit. [ 9 ] Further, at the conclusion of that reconsideration the decision of the Housing Association may remain unchanged.

This is because the allocation of housing units is not based solely on residency. It is based on a number of factors which, when applied to the applicant at the conclusion of a successful judicial review, may or may not change her place on the waiting list. [ 10 ] Consequently, the granting of a mandatory injunction requiring the particular housing unit be leased to the applicant would have the effect of conferring a benefit on the applicant to which she may not be entitled even if successful at a hearing. C.

Where does the balance of convenience lie? [ 11 ] The determination of where the balance of convenience lies requires the Court to balance the interests of the applicant and the respondent. In this matter, although the Housing Association is the legal entity responding, it must be remembered that the Housing Association represents the interests of all applicants approved for social housing.

The broader public interest must be taken in to consideration. [ 12 ] If the injunction is not granted and the application is successful on judicial review, for the reasons previously stated regarding the numerous factors considered in allocating housing, the applicant's status may not be affected. [ 13 ] However, if a mandatory injunction is granted and the applicant moves into the housing unit she receives a benefit she might not otherwise receive to the detriment of the next family on the waiting list, who will be required to continue waiting.

[ 14 ] If a prohibitive injunction is granted, it is again the families on the waiting list who suffer as they continue to wait while a house sits empty. Further, leaving a housing unit empty in a jurisdiction with a serious housing shortage and where the weather puts vacant units at a significant risk of damage is quite simply irresponsible. IV. CONCLUSION [ 15 ] There are also public policy considerations. It is important that families waiting for housing are confident in the fairness of the public housing allocation system.

Granting an injunction in the circumstances of this matter would seriously undermine public confidence in the public housing system to the detriment of the broader community. [ 16 ] The application for an interlocutory injunction is dismissed. Dated at the City of Iqaluit this 17th day of December, 2014 ___________________ Justice S. Cooper Nunavut Court of Justice