Edwin Tucker v. Vine Tucker, 2019 NLSC 182

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : Tucker v. Newfoundland and Labrador (Municipal Affairs) , 2019 NLSC 182 Date : October 10, 2019 Docket : 201901G2222 In The Matter of the Community Relocation Policy of the Department of Municipal Affairs respecting the Community of Little Bay Islands, in the Province of Newfoundland and Labrador; And In The Matter of the decision of the Honourable Mr. Andrew Parsons, Q.C., Minister of Municipal Affairs and Environment, dated October 11, 2018.

Between: Edwin Tucker and Vine Tucker Applicant And: Her Majesty in Right of Newfoundland AND LABRADOR Respondent Before: Justice Daniel M. Boone Place of Hearing: St. John’s, Newfoundland and Labrador Date of Hearing: October 4, 2019

Summary: The Applicants applied for judicial review of a decision of the Minister dismissing their appeals under the Community Relocation Policy that determined that they did not qualify as permanent residents of the community of Little Bay Islands. The Application was dismissed as the Applicants did not show that they had been denied natural justice nor that the decision of the Minister was unreasonable. Appearances:

Henry G. Mugford Appearing on behalf of the Applicant Jessica R. Pynn Appearing on behalf of the Respondent Authorities Cited: CASES CONSIDERED: Flynn v. Newfoundland and Labrador, 2018 NLSC 29 ; Fudge v. Newfoundland and Labrador (Minister of Municipal Affairs) , 2013 NLTD(G) 14; Baker v. Canada (Minister of Citizenship & Immigration) , 1999 SCC 699 STATUTES CONSIDERED: Evacuated Communities Act, 2016, R.S.N.L. 2016, c.

E-15.1 REASONS FOR JUDGMENT Boone, J. : INTRODUCTION [ 1 ] This Application seeks judicial review of a decision of the Minister of Municipal Affairs and Environment that denied the Applicants relocation funding. The Applicants say the decision was reached by unfair process and was unreasonable. [ 2 ] Resettlement is a policy of the provincial government intended to facilitate the aggregation of the population into larger communities and rationalize the delivery of public services. Current resettlement process is community-initiated. It is based in Government policy and not the subject of statute or regulation.

The only treatment of the topic in either statute or regulation is in the Evacuated Communities Act, 2016, R.S.N.L. 2016, c. E-15.1 , which deals only with questions arising after a community has been vacated by voluntary relocation with the assistance of Government. [ 3 ] The Government has adopted a Community Relocation Policy (the “ Policy ”). The current statement of that policy was promulgated in November 2016. The Policy allows the Minister of Municipal Affairs to consider and approve a request from a community to hold a vote on relocation.

If 90% of the permanent residents of a community vote in favour of relocation, then the Minister may approve financial assistance for relocation, so long as the cost of such assistance does not exceed the projected cost of delivering services to that community over a defined period. [ 4 ] Two community initiatives asked the Minister to consider relocation of the Town of Little Bay Islands, a community spread over four small adjacent islands in Notre Dame Bay. The first request in 2013 resulted in a plebiscite in which slightly fewer than 90% of permanent residents voted in favour of relocation.

The request for assistance was therefore rejected. However, in 2016, another plebiscite returned a vote of greater than 90%, and the Minister approved the relocation request and ancillary financial assistance. Pursuant to the Policy , the assistance available was set at $260,000 for a household of two persons determined to be permanent residents. [ 5 ] The Applicants owned a house in Little Bay Islands and were a household of two. However, the Department of Municipal Affairs determined they were not permanent residents within the meaning of that Policy .

The Applicants appealed to the Minister, but he denied their Appeal. The Minister’s

interpretation of the Policy and the application of the Policy to the Applicants is the subject of this Application for judicial review of the Minister’s decision. ISSUES 1. What is the appropriate standard of review of the decision of the Minister? 2. Was the appeal fairly conducted? 3. Was the decision of the Minster reasonable? BACKGROUND i. The Applicants [ 6 ] The Applicants are a married couple, both born in the 1930s, who lived in Little Bay Islands for their entire lives until 2016. They own a house there and it is their only real property.

In their application pursuant to the Community Relocation Policy , they provided copies of their utility bills, tax records, and government-issued identification cards establishing their stated residence to be in Little Bay Islands. They were determined to be permanent residents of Little Bay Islands in 2013 under the prior Community Relocation Policy for the purposes of being allowed to vote in the relocation plebiscite. This determination was made notwithstanding that they had

both been away from Little Bay Islands for significant periods (in excess of 150 days) based on their doctor’s recommendation that during the winter months they live where medical treatment was more accessible. [ 7 ] By 2016, the Applicants were living away from Little Bay Islands for longer periods than prior to 2013.

In their 2016 application under the Community Relocation Policy , they were asked to provide the number of days during each month they spent at their residence in Little Bay Islands, and the number of days per month they were absent, along with the reasons for absence, during the period from February 2016 (a year before the relocation request was made) and June 2017 when status was being considered. They disclosed that they had been in the community for the months of June to October 2016 and June 2017 and away from the community for medical reasons for the remaining months.

During the periods they were away from Little Bay Islands, they lived in St. John’s in a house that their son built for them. Their disclosure established that they lived in Little Bay Islands for 153 days and in St. John’s for 213 days in the year between February 2016 and January 2017. They provided a letter from their family doctor which stated: This is to confirm that Doris and Edwin Tucker are my patients while they live in St. John’s. They both have medical conditions that necessitate their medical needs to be away from Little Bay Islands during the winter months.

I have given them my medical directive to be close to St. John’s during times that travel may be slow and safety is a priority. ii.

The Community Relocation Policy [ 8 ] The definition of “permanent resident” in the Community Relocation Policy adopted in November 2016 was different from the definition used in the previous Policy adopted in 2013, in a manner which turned out to be significant in this case. [ 9 ] The 2013 Policy set out the following test for permanent residency: Permanent Resident : Permanent residency is established if, in each of the two twelve - month periods immediately preceding the Relocation Request Date, an individual fulfills the requirements listed in (a), (

b) and (

c) below: (

a) The individual resided in the Community requesting relocation for at least 183 days in each of the two twelve - month periods. Absences from the Community for the following reasons will be accepted as residing in the Community and will count toward calculation of the 183 days: i. The individual was temporarily absent from the community to attend grade school or post-secondary school. ii. The individual was temporarily absent for medical reasons substantiated by a doctor's note satisfactory to the Minister or to assist a close relative who was temporarily absent for medical reasons. iii.

The individual or his/her spouse worked outside the Community and regularly returned to the Community between periods of outside employment; (

b) The individual did not establish permanent residency in another Community; and (

c) Proof of (

a) and (

b) must be satisfactory to the Department. [emphasis added] [ 10 ] The 2016 Policy reads as follows: D. Permanent Resident: The following rules shall determine residency of a person for the purpose of the Community Relocation Policy: (

i) A person shall be a resident of the place where he or she lives and sleeps year-round, 365 days per year; (ii) Residency is not lost by a person who leaves that residence for temporary purposes only, such as: 1. The individual was temporarily absent for a vacation or holiday; 2. The individual was temporarily absent for medical reasons substantiated by a doctor’s note satisfactory to the Minister; 3. The individual was temporarily absent to care for a close relative outside the relocating community; 4.

The individual or his/her spouse worked outside the Community and regularly returned to the Community between periods of outside employment; or 5. The individual was temporarily incarcerated. (iii) Notwithstanding the above, a person who goes to a place outside the Community for a period of more than six months, in the one- year period preceding the relocation request date, ceases to be a permanent resident in the community, although he or she may intend to return at some future time, with the exception of those accessing ongoing health care treatment substantiated by a doctor’s note or temporarily incarcerated.

A person residing in a Long-Term Care Home does not qualify as a permanent resident.

(iv) A person who has left his or her place of residence in the Community to pursue a course of study is considered to be a permanent resident in the place where he or she was residing immediately before leaving to pursue the course of study, and he or she is considered to continue to have that permanent residence until he or she completes or abandons the course of study. (

v) a person shall, for the purpose of the Community Relocation Policy, have only one place of residency. (vi) Proof of residency must be satisfactory to the Department. [ 11 ] The most important distinction between the rules is the addition in the 2016 Policy of the six-month limit on exceptional absences. This limit was, however, subject to a further exception for absences for the purpose of “accessing ongoing health care treatment.” iii. The Initial Decision [ 12 ] The Department of Municipal Affairs initially determined that the Applicants were not permanent residents.

The Department did not offer a specific reason for its determination. iv. The Appeal [ 13 ] The Policy provided for an appeal process and the Applicants appealed. The Policy allowed for appeal to be based upon the

interpretation of facts by the Department, or on circumstances not envisioned by the Policy that could nevertheless warrant an exception. [ 14 ] The appeal process provided that the appeal was to the Minister. The Minister was empowered to appoint an independent reviewer to consider the appeal and make a recommendation to the Minister. [ 15 ] The Applicants hired a lawyer and appealed the determination by the Department. They were not the only persons from Little Bay Islands to appeal. The appeal did not rely on any new information or documentation, but on legal argument regarding the appropriate

interpretation and application of the Policy . The Minister appointed John Hogan as reviewer for each of the appeals. [ 16 ] Mr. Hogan met with the Applicants briefly in Little Bay Islands. The Applicants were offered opportunity to have their lawyer present for the meeting, but declined representation. [ 17 ] Mr. Hogan wrote a lengthy report regarding the appeal concluding with a recommendation to the Minister that the Applicants ought not to be considered permanent residents. In the course of his report, Mr.

Hogan set out the facts on which the Applicants relied, and referred to case law from this Court in which the 2013 Policy had been interpreted and considered on judicial review. He based his recommendation on the following

interpretation of the Policy : 45. I note that the Tuckers returned to Little Bay Islands in June 2016 and June 2017 (as outlined in their Affidavits). Therefore, I conclude that due to their regular return, they have not left Little Bay Islands “permanently” but rather their time away from Little Bay Islands in the winters of 2016-2017 and 2017-2018 was a “temporary absence”. While the Tuckers have permanent diagnoses, Butler, J. concluded in Flynn that the permanency of a diagnosis is not relevant. What is relevant is the permanency of the absence. In the case of the Tuckers, I conclude it is not a permanent absence and therefore pursuant to

section 1.D(ii) they did not lose their residency in Little Bay Islands. 46. However,

section 1.D.(iii), which is discussed in paragraph 24 herein, contains a “notwithstanding clause.” A person who goes to a place outside Little Bay Islands for a period of more than six months in the one-year period preceding the relocation request date ceases to be a Permanent Resident. The relocation request date is 7 February 2017. The Tuckers, according to their Affidavits, were outside Little Bay Islands for February 2016, March 2016, April 2016, May 2016, November 2016, December 2016 and January 2017. This is a total of seven months. Therefore, pursuant to

section 1.D.(111) of the Policy , the Tuckers appear to have been absent from Little Bay Islands for too long. But, there is an exception within this section, being that this lengthy absence is permitted if the individual is “accessing ongoing health care substantiated by a doctor’s note.” The question then becomes whether the Tuckers were absent because they were “accessing ongoing health care treatment substantiated by a doctor’s note.” I conclude they were not. 47. My

interpretation of

section 1.D.(iii) of the Policy , explained in paragraph 23 herein, is that a narrow

interpretation should be applied to the phrase “ongoing health care treatment.” There must be evidence of specific, ongoing treatment to avail of the notwithstanding clause of

section 1.D.(iii) of the Policy . Dr. Woodland’s note states that the Tuckers “have medical conditions that necessitate their medical needs to be away from Little Bay Islands during the winter months.” Presumably, the medical conditions are the ones referred to in the notes from Dr. Hicks. However, Dr. Woodland’s note does not refer to or substantiate that either of the Tuckers are “accessing ongoing health care treatment.” In fact, it does not refer to any treatment whatsoever. Rather, the Tuckers spend time in St.

John’s “during times that travel may be slow and safety is a priority.” This is not the same as leaving Little Bay Islands to access “ongoing health care treatment.” There must be evidence of specific, ongoing treatment to avail of the notwithstanding clause of

section 1.D.(iii) of the Policy . There is no evidence of such in the case of the Tuckers. [ 18 ] The reviewer’s

interpretation of the Policy that controlled the outcome is set out in the following excerpt from his report: 23. Also,

section 1.D.(ii) refers to being absent for “medical reasons” whereas

section 1.D.(iii) (discussed in detail further below) refers to absence due to “ongoing health care treatment”. I interpret “medical reasons” more broadly than “ongoing health care treatment.” There must be evidence of specific, ongoing treatment to avail of the notwithstanding clause of

section 1.D.(iii) of the Policy . Less specificity is required in reference to “medical reasons.” Furthermore, a “medical reason” does not necessarily mean someone is receiving “ongoing health care treatment”, but “ongoing health care treatment” is most certainly a “medical reason,” thus meaning “ongoing health care treatment” is the narrower of the two phrases. [ 19 ] Mr. Hogan noted in his report that the purpose, spirit, and intent of the Policy is to compensate people for the loss of their home, and not mere loss of property, and for this reason, it is important for people to qualify pursuant to the terms of the Policy .

[20] The Minister accepted Mr. Hogan’s recommendation, and dismissed the Appeal in a letter to the Applicants: Based on Mr. John Hogan’s independent review, I have accepted his recommendation that you do not meet the criteria of PermanentResidents of Little Bay Islands. Mr. Hogan concluded that you were away from Little Bay Islands for a period of more than six monthsin the one-year [sic] preceding the relocation request date, and therefore, ceased to be residents pursuant to

section 1.D(iii) of theCommunity Relocation Policy (a person who goes to a place outside the community for a period of more than six months, in the one-yearperiod preceding the relocation request date, ceases to be a permanent resident in the community). This means you are ineligible to voteon the potential relocation and you are ineligible for relocation financial assistance. I have enclosed Mr. Hogan’s report for yourinformation. ANALYSIS [21] The Applicants seek judicial review of the Minister’s dismissal of their appeal.

They argue that the appeal was conducted in amanner that was unfair and amounted to a denial of natural justice because they could not exercise their right to be heard. They alsoargue that the

interpretation of the Policy on which Mr. Hogan based his recommendation was unreasonable and, therefore, the decisionof the Minister was unreasonable and ought to be set aside.

a) Standard of Review [22] Decisions made by the Minister on appeals from determinations of residency under the Community Relocation Policy aresubject to review in this Court: Flynn v. Newfoundland and Labrador, 2018 NLSC 29; and Fudge v. Newfoundland and Labrador(Minister of Municipal Affairs), 2013 NLTD(G) 14. [23] The Applicants argue that they were not accorded appropriate notice and full right to be heard in the review by Mr. Hogan.

Therequirement for procedural fairness extends to a review carried out in connection with an appeal to the Minister under the CommunityRelocation Policy: Flynn, supra, at paragraphs 21 to 23. If the Applicants are able to establish procedural unfairness in the conduct ofthe review by Mr. Hogan, then the review and resulting decision by the Minister would be void. No deference is owed by this Court to adecision that results from a process in which principles of natural justice were not respected. [24] The Applicants also dispute the

interpretation of the Community Relocation Policy by the Minister and his application of thePolicy to their case. The cases previously cited establish that the review of the decision of the Minister in this regard is to be conductedagainst a standard of reasonableness. As Goodridge, J., as he then was, put it in Fudge, supra, at paragraph 22: In judicial review, reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within thedecision-making process.

It is also concerned with whether the decision falls within a range of possible, acceptable outcomes which aredefensible in respect of the facts and law (Dunsmuir, at para. 47). In assessing whether the decision is reasonable in light of the outcomeand the reasons, courts must show "respect for the decision-making process of adjudicative bodies with regard to both the facts and thelaw" (Dunsmuir, at para. 48). This means that courts should not substitute their own reasons, but they may, if necessary, look to therecord for the purpose of assessing the reasonableness of the outcome (NL Nurses' Union at para. 15).

Absent a submission that a policyis contrary to law — and none is made here — and absent a demonstration of unreasonableness, it is not the role of the courts to questionthe wisdom or merits of the Minister's policy decisions and it is not relevant whether I agree or disagree with a policy decision.

b) Whether the review was conducted unfairly [25] The Applicants raise the following procedural issues with the manner in which the review by Mr. Hogan was conducted: • They allege that the reviewer applied a more onerous standard for residency than they anticipated; • The reviewer failed to ask the Applicants or their medical advisor further details of their medical care or treatment. [26] The complaint of the Applicants regarding the first issue is that the 2016 Policy, as interpreted by Mr. Hogan, applied a moreonerous standard than they expected because their previous experience was with the 2013 standard.

They rely on the followingstatement from the decision of the Supreme Court of Canada in Baker v. Canada (Minister of Citizenship & Immigration), 1999 SCC699, at paragraph 26: Fourth, the legitimate expectations of the person challenging the decision may also determine what procedures the duty of fairnessrequires in given circumstances. Our Court has held that, in Canada, this doctrine is part of the doctrine of fairness or natural justice, andthat it does not create substantive rights: Old St. Boniface, supra, at p. 1204; Reference re Canada Assistance Plan (Canada), (SCC), [1991] 2 S.C.R. 525 (S.C.C.) at p. 557.

As applied in Canada, if a legitimate expectation is found to exist, this willaffect the content of the duty of fairness owed to the individual or individuals affected by the decision. If the claimant has a legitimateexpectation that a certain procedure will be followed, this procedure will be required by the duty of fairness: Qi v. Canada (Minister ofCitizenship & Immigration) (1995), 33 Imm. L.R. (2d) 57 (Fed. T.D.); Mercier-Néron v. Canada (Minister of National Health &Welfare) (1995), 98 F.T.R. 36 (Fed. T.D.); Bendahmane v. Canada (Minister of Employment & Immigration), (FCA),[1989] 3 F.C. 16 (Fed. C.A.).

Similarly, if a claimant has a legitimate expectation that a certain result will be reached in his or her case,fairness may require more extensive procedural rights than would otherwise be accorded: D.J. Mullan, Administrative Law (3rd ed.1996), at pp. 214-15; D. Shapiro, "Legitimate Expectation and its Application to Canadian Immigration Law" (1992), 8 J.L. & Soc. Pol'y282, at p. 297; Canada (Attorney General) v. Canada (Human Rights Tribunal) (1994), (FC), 76 F.T.R. 1 (Fed.T.D.). Nevertheless, the doctrine of legitimate expectations cannot lead to substantive rights outside the procedural domain.

Thisdoctrine, as applied in Canada, is based on the principle that the "circumstances" affecting procedural fairness take into account thepromises or regular practices of administrative decision-makers, and that it will generally be unfair for them to act in contravention ofrepresentations as to procedure, or to backtrack on substantive promises without according significant procedural rights. [27] The doctrine of legitimate expectations is applied to matters of procedure, and not to matters of substance.

The Applicantscomplain that neither the Department nor the reviewer advised them that the standards for determining residency under the 2016 Policy

had changed from the standard under the 2013 Policy . This change is not a matter of procedure but a change to the substantive rules that the reviewer would apply. The Applicants could not have had a legitimate expectation that the rules for residency in the 2013 Policy would apply to the

interpretation and application of the 2016 Policy . [ 28 ] As to the second issue, the Applicants argue that the reviewer ought to have made further inquiries of the Applicants or of their medical advisor or of others to determine specifics of their treatment. I can see no basis for this suggestion. The notice from the Department of the initial determination advised the Applicants of their right to appeal, and also of their requirement to provide the rationale and supporting documentation for their appeal. Procedural fairness does not require the decision maker to make out the grounds for appeal.

If the Applicants had mentioned in their interview with the reviewer that they had been receiving ongoing and specific medical treatment, then it would have been perhaps unfair for the reviewer to ignore that without requesting further details. But this did not occur in this case. The Applicants, moreover, had retained a lawyer to file their appeal for them, and the lawyer did not suggest that the Applicants’ requirement for medical care was more specific than stated by Dr. Woodland in his letter.

I note, parenthetically, that in support of this Application, the Applicants filed a further letter from their family doctor that contained an addendum that listed their respective diagnoses, but did not suggest that the Applicants were receiving ongoing care or treatment. [ 29 ] I find that the Applicants have not demonstrated procedural unfairness in the conduct of the review of their appeal.

c) Whether the decision was unreasonable [ 30 ] The review of the decision of the Minister extends to consideration of the report and recommendation on which he based his decision: Flynn and Fudge , supra. [ 31 ] As stated by Goodridge, J., as he then was, in Fudge , reasonableness has two aspects.

First, the concept of reasonableness is primarily concerned with the existence of justification, transparency, and intelligibility within the decision-making process. [ 32 ] In this case, the Minister’s decision clearly articulated that he was accepting the recommendations of the reviewer, and the Minister provided the Applicants with a full copy of the reviewer’s detailed report. The decision of the Minister was therefore transparent within the meaning of the case law. [ 33 ] The reviewer’s report provided a thorough and intelligible exposition of his

interpretation of the Policy . The reviewer concluded that the term “medical reasons”, which justifies absence of a permanent resident from the community for less than 6 months, means something different than the term “ongoing health treatment” which excuses absence for more than six months, and that the latter required different and more specific evidence than the former.

In paragraph 23 of his reasons (quoted above), he explained his reasons for those conclusions. [ 34 ] Second, as Goodridge, J. noted in Fudge , reasonableness is also concerned with whether the impugned decision falls within a range of possible, acceptable outcomes that are defensible in respect of the facts and law. [ 35 ] I find that the reviewer’s

interpretation and application of the Policy , on which the Minister based his decision, is within a range of reasonable outcomes. In argument before this Court, the Applicants relied on principles of statutory construction (the principle that similar phrases have similar meaning and purposive

interpretation) to support their position that the reviewer’s

interpretation of the Policy was incorrect. The Minister relied also on principles of construction (different words in the same instrument should be ascribed different meanings and purposive

interpretation) to support his decision. [ 36 ] It may be that the

interpretation offered by the Applicants is also plausible. However, it is not the role of this Court on judicial review to choose between two plausible

interpretations and substitute its opinion for that of the Minister. The Minister’s reasons are logical, and based on a tenable

interpretation of the Policy and a clear appreciation of the facts presented in support of the appeal, and therefore clearly in the range of acceptable outcomes. [ 37 ] The Application is dismissed. The Respondent advised the Court that it would not seek costs if successful. The parties shall bear their own costs. _____________________________ Daniel M. Boone Justice