2013 MBCA 36, 2013 MBCA 36

Citation: Manitoba Housing v. Amyotte et al., Date: 20130501 2013 MBCA 36 Dockets: AI 12-30-07866/67/68/69/ 70/71/72/73/74/75/76/77 IN THE COURT OF APPEAL OF MANITOBA BETWEEN : ) MANITOBA HOUSING ) ) A. J. Ladyka (Landlord) Applicant ) for the Applicant ) - and - ) D. Gabriel, ) L. Spence and LAURA AMYOTTE, BEATRICE ) R. Roulette CATCHEWAY, JAMES CATCHEWAY ) on behalf of all Respondents and THERESA CATCHEWAY, TANYA ) CATCHEWAY and LUKE CATCHEWAY, ) M. T.

Green JUDITH DORION and PERRY DORION, ) for The Residential Tenancies DONNA GABRIEL, JOYCE GABRIEL, ) Commission KAREN GABRIEL and ERNEST ) GABRIEL, MARCEL GABRIEL, NORMA ) Chambers motions heard: GABRIEL and CONRAD GABRIEL, ) March 1, 2013 BERNADETTE MARION, LENA ) SPENCE and GARRY SPENCE ) Decision pronounced: ) May 1, 2013 (Tenants) Respondents ) ) MARC M. MONNIN J.A. 1 The applicant (Manitoba Housing) is the landlord of a subsidized housing complex in Portage la Prairie, Manitoba, known as Zelena Village.

It seeks leave to appeal from decisions of the Residential Tenancies Commission (the Commission) whereby it refused to confirm orders of possession granted by the Residential Tenancies Branch (the RTB) for 12 units occupied by the respondents in the complex. 2 These applications proceeded with argument based upon the facts in the case of Donna Gabriel.

All parties, including the respondents, acknowledged that the arguments and submissions would be applicable to the 11 other respondents, save for the recognition that in the case of Laura Amyotte, there was a factual discrepancy in that she was not an original tenant, but was a descendant of a previous tenant. 3 The Commission was of the opinion that, since the respondents were persons in need occupying temporary shelter, it lacked the jurisdiction to issue orders of possession. I have concluded that the applicant has raised an issue of sufficient importance and merit that I should grant leave.

Therefore, while I will be restrained in the comments that follow, I believe that a certain historical and legal background is necessary to fully appreciate the arguments before me and the reasons why I have concluded that leave should be granted. Historical Background 4 The genesis for these proceedings dates back to the early 1990s. At that time, the respondents (save Laura Amyotte, who is a child of one of the respondents) were members of the Waterhen Lake First Nation and lived on the reserve occupied by the Band. They were in conflict with the then Chief and certain Councillors.

In 1996, as a result of events arising from the conflict, they were evicted. After their eviction from the reserve, the group sought the assistance of the Provincial Government to find them temporary housing. Eventually they were offered accommodation in the Zelena Village complex in Portage la Prairie, Manitoba, which was and is managed by Manitoba Housing on behalf of the Province. They moved into the premises of Zelena Village in July 1996. They became

known as the Waterhen-Portage group. 5 At the time that they moved to Portage la Prairie, the respondents entered into leases with Manitoba Housing and paid rent in accordance with those leases. In November 1996, the then provincial Minister of Housing wrote to the federal Minister of Indian and Northern Affairs seeking reimbursement for the costs of housing the Waterhen-Portage group and stated as follows: I am writing to advise you that The Manitoba Housing Authority has provided emergency housing to families from the Waterhen Reserve in Manitoba. …. ….

These costs were a direct result of providing emergency service for the residents of the Waterhen Reserve. . . . . . [emphasis added] 6 The Waterhen-Portage group, in its evidence before the Commission, indicated that they had moved to the Zelena Village and agreed to pay rent for the premises on the understanding that the Provincial Government would negotiate with them to work out a long-term solution for their housing, potentially an urban reserve, which would alleviate their obligation to pay rent and put them back into a position approximating their situation on the reserve. 7 The group continued its discussions and negotiations with the Provincial Government while remaining in Portage la Prairie.

However, as a result of a change in government in early 2000, the group met with a new minister of the provincial government, where it appeared the position taken until then with respect to accommodating or negotiating their demands would change. As a result, in April 2001, the members of the group ceased paying any of the rent claimed by the applicant. The respondents’ non-payment of rent continued for over nine years. In 2010, the Waterhen-Portage group had 12 participants not paying rent. This situation remains unresolved.

Legal Proceedings 8 In 2010, Manitoba Housing, through its Director of Property Services, wrote letters to the individual respondents offering to forego any claim to arrears of rent on the understanding that it would be paid going forward. Not receiving a satisfactory response, Manitoba Housing proceeded to act on the continuing failure to pay rent and put into motion a process to have the respondents evicted and arrears collected. It did so by first seeking orders of possession from the RTB.

These were granted. 9 The respondents appealed the granting of the orders of possession to the Commission. 10 Before the Commission, the respondents took objection to the jurisdiction of the Commission to hear the applications for orders of possession. They did so by raising two grounds. The first ground was that their status entitled them to certain treaty rights which superseded the provisions of The Residential Tenancies Act , C.C.S.M., c. R119 (the Act ).

Secondly, they took the position that the housing provided to them was emergency housing and was therefore exempt from the application of the Act pursuant to s. 3(1)(e). 11 Section 3(1) (

e) of the Act provides as follows: 3(1) This Act does not apply to . . . . . (

e) living accommodation provided to temporarily shelter persons in need; . . . . . 12 The Commission did not accept the first argument raised by the respondents that treaty rights were an issue. It did so on the basis that the property in question was not the subject of a treaty land entitlement claim or any other such restriction and therefore, was not, for that reason, outside of the Commission’s jurisdiction. As to the second argument, the Commission accepted that the respondents were persons in need and that, as the emergency situation for which they were receiving temporary housing continued to

exist, the premises were in fact temporary shelter. Therefore, by virtue of the provisions of s. 3(1)(

e) of the Act, it was not within thejurisdiction of the Commission to deal with the matter. Criteria on Leave to Appeal Application 13 Pursuant to s. 175 of the Act, an appeal may be brought to this court from a decision of the Commission on a questionof jurisdiction or of law with leave obtained from a judge. 14 The criteria to be applied on such an application were set out by Freedman J.A. in Manitoba Housing Authority v.Horvat, 2010 MBCA 43, 255 Man.R. (2d) 42 (at para. 3): .... 1.

The question must be truly one only of jurisdiction or of law, and not one which “involve[s] the court in an assessment or analysis ofconflicting factual issues” (Shersty v. Manitoba Public Insurance Corp. (2002), 2002 MBCA 108 , 43 C.C.L.I. (3d) 35; 2002MBCA 108 (Man. C.A. [In Chambers]), at para. 2; Fillion v. Manitoba Public Insurance Corp. (2004), 2004 MBCA 61 , 10C.C.L.I. (4th) 182; 2004 MBCA 61 (Man. C.A.), and cases cited therein). 2.

The case must be one that warrants the attention of the court. “The issue must be one of importance; not just for the immediate case,but in determining other similar disputes which are apt to arise in [the] future” (Wuziuk v. Manitoba (Director of Social Services) (No.2) (1979), (MB CA), 3 Man.R. (2d) 81 (Man. C.A.), at para. 7). 3. There must be an arguable case of substance; i.e., one with a reasonable prospect of success (see Lejins v. Manitoba PublicInsurance Corp. (2003), 2003 MBCA 95 , 50 C.C.L.I. (3d) 1; 2003 MBCA 95 (Man. C.A. [In Chambers])).

Positions of the Parties 15 Manitoba Housing’s position is that it has met the three requirements to be granted leave to appeal from the decisionsof the Commission. 16 On the first issue of whether it has raised a question of law or jurisdiction, it notes that the Commission, in itsdecisions, stipulates that “we do not have jurisdiction to deal with this situation.” It argues that the Commission itself viewed it as amatter of jurisdiction, not dealing with the matter on the merits, but rather determining, after reviewing the evidence, that it could notadjudicate the dispute. 17 As to whether this is a matter that warrants the attention of the court, Manitoba Housing argues that the applications arerelevant to not just one, but 12 appeals before the Commission.

It also argues that it is a question of importance for individuals otherthan those who are involved in these present proceedings. It notes the situation of one respondent, who is the child of a former residentof Waterhen who has signed a tenancy agreement, and such a situation may well repeat itself.

It also argues that the issue of theWaterhen situation, which required Manitoba Housing to provide accommodation in a time of emergency, may arise again and that theagency and its tenants would wish to have an understanding of their respective rights and obligations. 18 Finally, as to whether it has an arguable case of substance, Manitoba Housing argues that this may be a situation wherethe standard of correctness would apply and that, in its argument, the Commission has incorrectly interpreted the meaning of s. 3(1)(e).

Recognizing, however, in light of current jurisprudence, this may not be a question of “true jurisdiction” as defined in Dunsmuir v. NewBrunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, or in Alberta (Information and Privacy Commissioner) v. Alberta Teachers’ Association,2011 SCC 61, [2011] 3 S.C.R. 654, Manitoba Housing argues that, even on a deferential standard of reasonableness, there is an arguablecase of substance with a real chance of success given the factual background. It argues that the respondents have been long-timeresidents of Zelena Village and the premises are no longer “temporary shelter” to them.

Manitoba Housing also questions whether therespondents continue to be “persons in need” given their actual situation and the passage of time. 19 Manitoba Housing stressed that there was a distinction between the statutory appeal process as provided for in the Actand a judicial review process. As such, the

interpretation given to s. 175(2) should not bear the restrictions imposed by the AlbertaTeachers’ decision and the use of the words “question of jurisdiction” in that

section is not a reference to the “jurisdiction” issues raisedby the Supreme Court in the Dunsmuir case and those that followed. In Manitoba Housing’s submission, Dunsmuir and the line of casesthat follow it deal with standards of review and not with the initial determination of the nature of the question which is to be reviewed bythe court. 20 The Commission’s position on the hearing of the applications was that, in essence, this was a factual determination bythe Commission that the situation of the respondents fell outside the scope of its jurisdiction.

In the Commission’s submission, a findingthat the individuals were persons in need residing in temporary shelters was a factual determination that the Commission is entitled tomake and is not a question of “jurisdiction” bringing it within s. 175 of the Act. 21 Furthermore, this is not a question of “true jurisdiction” as referred to in Alberta Teachers’, but is, at best, a question of

mixed fact and law. Accordingly, even if there was a matter to be reviewed by the court, it would be on a standard of reasonableness and there is nothing to support the contention that the factual determinations made by the Commission which led it to conclude that the premises fell within the meaning of s. 3(1)(

e) of the Act and therefore outside of its jurisdiction were not reasonable. 22 The respondents, through their representatives, provided submissions at the hearing. The respondents indicated their agreement with the submission of counsel for the Commission. They argued that the Commission is a specialized tribunal with the responsibility of determining what fell within its statutory authority. In their submission, the finding that they remained persons in need was a fact which the Commission was entitled to make, and therefore, a conclusion that it had no jurisdiction was reasonable in the circumstances.

Issues 23 Manitoba Housing sets out the issues as follows: 1. Did the Residential Tenancies Commission err in finding that, pursuant to section 3(1) (

e) of The Residential Tenancies Act , it did not have jurisdiction over the matter because the matter involved living accommodation provided to temporarily shelter persons in need? 2. Did the Residential Tenancies Commission err in law in its

interpretation of section 3(1) (

e) of The Residential Tenancies Act ? 3. Did the Residential Tenancies Commission err in law in finding that the premises in which the Respondent was living were living accommodations provided to temporarily shelter persons in need? 24 The third issue may be problematic in that it would appear to involve a review of how the Commission applied the legal definition of s. 3(1) (

e) to the facts that it found. The application of a legal test to a set of facts is a question of mixed fact and law which is not subject to an appeal under s. 175 of the Act . However, if a legal error can be extricated from the findings and considered independently, that would allow for leave to appeal to be granted. See Housen v. Nikolaisen , 2002 SCC 33 at para. 33 , [2002] 2 S.C.R. 235 . To the extent that the error of law to be extricated is an

interpretation of s. 3(1) (

e) of the Act which it cannot bear, then the third issue can be considered by this court. Analysis 25 I have concluded that the issues raised by Manitoba Housing are issues of jurisdiction or of law which raise arguable points and which warrant the attention of the court. Given that conclusion, I will not detail the full arguments which were placed before me and which the court will have to consider, but will provide an explanation as to why I have reached that conclusion. 26 In the decision of Smith v.

Alliance Pipeline Ltd. , 2011 SCC 7 , [ 2011] 1 S.C.R. 160 , Fish J., for the majority, explained the ground-shifting decision of the court in Dunsmuir as follows (at para. 26 ): Under Dunsmuir , the identified categories are subject to review for either correctness or reasonableness. The standard of correctness govern s: (1) a constitutional issue ; (2) a question of “general law ‘that is both of central importance to the legal system as a whole and outside the adjudicator’s specialized area of expertise’” ( Dunsmuir , at para. 60 citing Toronto (City) v.

C.U.P.E., Local 79 , 2003 SCC 63 , [2003] 3 S.C.R. 77 , at para. 62 ); (3) the drawing of jurisdictional lines between two or more competing specialized tribunals ; and (4) a “true question of jurisdiction or vires ” (para s . 58-61 ). On the other hand, reasonableness is normally the governing standard where the question: (1) relates to the

interpretation of the tribunal’s enabling (or “home”) statute or “statutes closely connected to its function, with which it will have particular familiarity” (para. 54); (2) raises issues of fact, discretion or policy; or (3) involves inextricably intertwined legal and factual issues (paras. 51 and 53-54). 27 What is a “ question of jurisdiction” has been the source of considerable judicial debate. In Dunsmuir , Bastarache and LeBel JJ. stated as follows (at para. 59): …. “Jurisdiction” is intended in the narrow sense of whether or not the tribunal had the authority to make the inquiry.

In other words, true jurisdiction questions arise where the tribunal must explicitly determine whether its statutory grant of power gives it the authority to decide a particular matter. The tribunal must interpret the grant of authority correctly or its action will be found to be ultra vires or to constitute a wrongful decline of jurisdiction …. …. 28 In a later case, Alberta Teachers’ , Rothstein J. went on to say as follows (at paras. 34, 42):

The direction that the category of true questions of jurisdiction should be interpreted narrowly takes on particular importance when the tribunal is interpreting its home statute. …. However, since Dunsmuir , this Court has departed from that definition of jurisdiction. Indeed, in view of recent jurisprudence, it may be that the time has come to reconsider whether, for purposes of judicial review, the category of true questions of jurisdiction exists and is necessary to identifying the appropriate standard of review. ….

As I have explained, I am unable to provide a definition of what might constitute a true question of jurisdiction. The difficulty with maintaining the category of true questions of jurisdiction is that without a clear definition or content to the category, courts will continue, unnecessarily, to be in doubt on this question. However, at this stage, I do not rule out, in our adversarial system, counsel raising an argument that might satisfy a court that a true question of jurisdiction exists and applies in a particular case.

The practical approach is to direct the courts and counsel that at this time, true questions of jurisdiction will be exceptional and, should the occasion arise, to address in a future case whether such category is indeed helpful or necessary. 29 The determination by the Commission in this case that it did not have the jurisdiction to entertain the applications made by Manitoba Housing on the basis that the factual situation of the respondents fell within s. 3(1) (

e) of the Act is arguably a “true question of jurisdiction.” However, whether the test will be correctness or reasonableness for the purpose of reviewing the decisions, does not take away from the fact that, in my view, there is an issue of jurisdiction or of statutory

interpretation involved, as contemplated by s. 175 of the Act . 30 I accept the argument advanced by Manitoba Housing that the issue is of some importance, not just with respect to the particular cases which are before the Commission at this time, but the manner in which it has applied the restrictions in s. 3(1) (

e) may also affect its future decision-making process. 31 Finally, as to having an arguable point to make, whether on a standard of correctness or of reasonableness, the findings of the Commission that the respondents are still persons in need and that their occupation of the premises for over 15 years amounts to residing in temporary housing are both matters which I am of the view can be the subject of review by this court. 32 I have therefore concluded that Manitoba Housing should be granted leave to appeal and that the questions should be as framed in its material to the court, namely: Did the Residential Tenancies Commission err in finding that, pursuant to section 3(1) (

e) of The Residential Tenancies Act , it did not have jurisdiction over the matter because the matter involved living accommodation provided to temporarily shelter persons in need? Did the Residential Tenancies Commission err in law in its

interpretation of section 3(1) (

e) of The Residential Tenancies Act ? Did the Residential Tenancies Commission err in law in finding that the premises in which the Respondent was living were living accommodations provided to temporarily shelter persons in need? 33 Given the nature of these proceedings, I would not grant costs to the applicant on this or related leave applications. J.A.