Manitoba Housing v. Date:, 2014 MBCA 54

Citation: Manitoba Housing v. Date: 20140604 Amyotte et al., 2014 MBCA 54 Dockets: AI 12-30-07866/67/68/69/ 70/71/72/73/74/75/76/77 IN THE COURT OF APPEAL OF MANITOBA Coram: Madam Justice Barbara M. Hamilton Madam Justice Diana M. Cameron Mr. Justice William J. Burnett BETWEEN : ) MANITOBA HOUSING ) ) (Landlord) Appellant ) A. J. Ladyka ) for the Appellant - and - ) ) M. A. Laham Szutiak LAURA AMYOTTE, BEATRICE ) for the Respondents CATCHEWAY, JAMES CATCHEWAY ) and THERESA CATCHEWAY, TANYA ) M. T.

Green CATCHEWAY and LUKE CATCHEWAY, ) for The Residential JUDITH DORION and PERRY DORION, ) Tenancies Commission DONNA GABRIEL, JOYCE GABRIEL, ) KAREN GABRIEL and ERNEST ) Appeals heard: GABRIEL, MARCEL GABRIEL, NORMA ) January 24, 2014 GABRIEL and CONRAD GABRIEL, ) BERNADETTE MARION, LENA ) Judgment delivered: SPENCE and GARRY SPENCE ) June 4, 2014 ) (Tenants) Respondents ) ) HAMILTON J.A. [ 1 ] The Residential Tenancies Act , C.C.S.M., c. R119 (the Act ), does not apply to “living accommodation provided to temporarily shelter persons in need.” See s. 3(1)(e).

The fundamental issue in these 12 appeals is whether the Residential Tenancies Commission (the Commission) erred in law when it concluded that this

section applies to the living accommodation of the respondents named in these appeals. [ 2 ] Because this issue is not dependant on specific facts related to each appeal, I deliver one set of reasons. This is consistent with the parties’ approach. They each prepared one factum and argued the appeals together.

It is also consistent with the fact that the Commission’s decisions are identical, except for a few factual references pertinent to the specific respondents. [ 3 ] The respondents live in a housing complex in Portage la Prairie (the Portage complex) owned by the appellant (Manitoba Housing), which is a public agency that manages subsidized housing. They moved to the complex in 1996 after they were expelled from their homes on the Waterhen First Nation as a result of a tense political dispute among band members.

Since then, the respondents have been seeking redress for this expulsion from the Governments of Manitoba and Canada. [ 4 ] The respondents have not paid rent to Manitoba Housing for a long time. In 2010, Manitoba Housing proceeded under the Act and sought orders of possession and orders of compensation for rental arrears. The Residential Tenancies Branch (the Branch) granted the orders of possession and ordered partial compensation. [ 5 ] On appeal by the respondents, the Commission ruled that the respondents were “persons in need” occupying “temporary shelter” pursuant to s. 3(1)(

e) and, therefore, the Act did not apply.

[ 6 ] I would allow the appeals by Manitoba Housing. The Commission failed to interpret s. 3(1)(

e) in a purposive way in accordance with the modern approach to statutory

interpretation. As a result, the Commission’s

interpretation of s. 3(1)(

e) is not, in my view, a reasonable one nor is the outcome of its decisions. Background [ 7 ] The parties appropriately agree that the relevant facts for each appeal are identical, except for the appeal concerning the respondent, Laura Amyotte (Ms Amyotte). [ 8 ] In May 1996, the respondents, who were all adults at the time except for Ms Amyotte, were expelled from the Waterhen First Nation. Ms Amyotte’s mother, Amy Amyotte, was also expelled. The respondents moved to Winnipeg without any place to live.

Manitoba Housing provided the respondents with housing located in central Winnipeg. [ 9 ] The Winnipeg location presented difficulties for various reasons and, within a month or so, Manitoba Housing arranged for the respondents to move into units in the Portage complex. [ 10 ] The respondents, other than Ms Amyotte, signed tenancy agreements and have lived in the Portage complex since. They paid rent for part of the time. However, starting in 2001, they stopped paying rent. [ 11 ] Ms Amyotte lived with her mother in the Portage complex until she moved away sometime after 2002.

In 2009, she applied to Manitoba Housing for living accommodation. In 2010, while Ms Amyotte was waiting for an apartment, Amy Amyotte died. Manitoba Housing assigned Ms Amyotte her mother’s unit in the Portage complex. Ms Amyotte signed a tenancy agreement. She has never paid rent. [ 12 ] As landlord of the Portage complex, Manitoba Housing addresses landlord and tenant issues for all occupants, including the respondents, in the normal course of providing the necessary services to manage the rental units in this subsidized housing complex.

These services include sending annual letters to the tenants seeking income information to enable Manitoba Housing to determine the appropriate rent to be charged. Because the respondents did not complete the annual rent calculation forms, Manitoba Housing charged rent based on the market rent in accordance with its policies. Manitoba Housing sent monthly letters to the respondents advising of rental arrears. [ 13 ] Over the years, the respondents engaged in communications and discussions with different government officials in their effort to obtain different housing arrangements.

In 2001, the respondents decided to stop paying rent to Manitoba Housing because they were of the view that the provincial government had reneged on what they refer to as its “good faith agreement” to assist them in finding housing to replace their homes on the Waterhen First Nation. [ 14 ] In 2010, the respondents rejected a proposal from Manitoba Housing to settle the outstanding arrears. Manitoba Housing then took formal action under the Act by issuing notices of termination for non-payment of rent.

When the respondents did not vacate the rental units, Manitoba Housing applied to the Branch for orders of possession and orders of compensation. In addition to granting the orders of possession, the Branch ordered the respondents to pay partial compensation. It limited the arrears to the date Manitoba Housing made its proposal in 2010 to reflect Manitoba Housing’s delay in seeking redress for the arrears in a timely fashion. [ 15 ] The respondents appealed to the Commission.

It ruled that it did not have jurisdiction over the rental units occupied by the respondents and rescinded the orders of possession and orders of compensation granted by the Branch. Reasons of the Commission [ 16 ] As will be seen, the Commission refers in its reasons to those individuals who were expelled and now reside in the Portage complex as the “Waterhen-Portage group.” Evidence [ 17 ] The Commission reviewed the historical evidence introduced by the respondents with respect to the conflict on the Waterhen First Nation that led to the expulsion of the respondents in 1996.

In explaining that some children were apprehended by Child and Family Services at that time, it wrote: …. Moreover those with children could not have the children returned to them from the child welfare authorities until they could provide a roof over the heads of the children.

As a result, the Waterhen-Portage group started to lobby the provincial government to find them temporary shelter. …. [ 18 ] With respect to the respondents’ move to the Portage complex and their signing of tenancy agreements, the Commission noted that: .... … [T]he Waterhen-Portage group members indicated that they were surprised that they were required to sign lease agreements as they got off the buses. They nevertheless did so because they had nowhere else to turn. …. [ 19 ] The Commission explained that, in November 1996, the provincial Minister of Housing, the Hon. Jack Reimer, sent a

letter to the federal Minister of Indian and Northern Affairs, seeking reimbursement for the costs of providing “emergency housing” and that the federal Minister rejected the request for reimbursement. The Commission quoted Minister Reimer’s letter, which read, in part, 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. The families were housed first in Winnipeg and then transferred, at their request and for their safety, to Portage La Prairie. ....

These costs were as a direct result of providing emergency service for the residents of the Waterhen Reserve. [ 20 ] With respect to the payment of rent by the respondents, the Commission wrote: The Waterhen-Portage group indicated that they moved to [the Portage complex] under the proviso that they would pay rent for the premises and the government would negotiate with them to work out a solution, potentially an urban reserve, which, among other things, would alleviate their obligation to pay rent and would put them back into a position approximating their previous lives.

This position is not acknowledged by the landlord at that time but is contained in what was described by the Waterhen-Portage group as the “ good faith agreement” outlined in a letter by Northern Affairs Minister David Newman dated July 30, 1998 .” …. [ 21 ] The Commission quoted Minister Newman’s July 30, 1998 letter in its entirety. It read in part as follows: .... In consideration of the extraordinary circumstance of your group, it was considered appropriate to look at other options for dispute resolution in an attempt to assist in the development of an improved understanding of your many concerns.

Any such offer, however, has been contingent on your group demonstrating its willingness to acknowledge responsibility for rent and rental arrears in current housing. . . . . . ... I recognize and am concerned with the circumstances you currently find yourself in. .... Our provincial government must administer its laws and policies fairly and equitably for all Manitobans.

Your lack of cooperation to date in complying with our provincial housing policies is leaving us without any other option except to enforce them. .... … [I]t is recognized that many of your concerns relate to federal matters such as reserve land base as well as what you perceive to be as injustices to you and your members. Provided there is a demonstration of good faith, I am prepared to work with you as you face the challenges in adjusting to your relocation. I am prepared to consider these matters with the federal government and others.

In order to do so, however, I must rely on you to make reasonable payments for your ongoing rent based on guidelines provided by the Department of Housing ... and work out a

schedule of payments to address outstanding rental arrears . …. [emphasis added] [ 22 ] The Commission explained that the expelled respondents “paid rent regularly” but ceased paying rent, starting in 2001, after various communications and meetings with subsequent Ministers in the provincial government failed to provide the redress that they were seeking. Positions of the Parties [ 23 ] The Commission set out the positions of the parties as follows: The [respondents’] … position was that this was emergency housing and that, as such, it was exempt from the application of the Act .

[Manitoba Housing’s] position was that this was a regular contract between a landlord and tenant and that it should be enforced.

In its rebuttal submission at the end of the hearing, [Manitoba Housing] submitted that, by the time of the move to Portage La Prairie, the housing was no longer emergency housing as it was no longer temporary. [Manitoba Housing] acknowledged that Minister Reimer’s letter disagrees with this position. [Manitoba Housing] took the position that by 1997, the emergency was over and that at some point after July 1996, it was no longer temporary housing. [ 24 ] The Commission rejected Manitoba Housing’s position: With all due respect to [Manitoba Housing’s] position, there is very little, if anything, that can be characterized as regular in this and the related matters.

This is a unique situation from the ones the Commission faces in the ordinary course. The question raised on the facts of this case is: Does the Commission have jurisdiction where nominally there is a tenancy in that tenancy agreements have been signed and in most there have been payments but there is not a regular landlord-tenant relationship? [emphasis added]

Interpretation and Conclusion [ 25 ] The balance of the reasons address the Commission’s analysis for interpreting s. 3(1)(

e) and applying it to the facts. Critical to its reasoning was the intention of Manitoba Housing in 1996 to provide temporary housing to the respondents, the Commission’s conclusion that there was no evidence adduced by Manitoba Housing to demonstrate that intention had ceased, and the “unique” circumstances of the respondents. Because this part of the Commission’s reasons is at the heart of these appeals, I quote it extensively: ... [T]he panel is mindful of the fact that neither side has treated this relationship in the ways that one would expect ordinarily.

The people were removed from their home reserve forcibly by the RCMP. .... At the outset, it took a ministerial intervention to get the Waterhen-Portage group into the premises. Morevoer, Minister Reimer characterized the housing in Portage la Prairie as “emergency housing” in the same terms as the Lord Selkirk housing was acknowledged. Additionally, there were promises to negotiate and discussions about re-establishing treaty status on reserve for these displaced people: see the letter from Minister Newman. [Manitoba Housing] by its actions acknowledged that this situation is highly unusual.

It is of note that following the letter by Minister Newman, there were payments made by a number of the [respondents]. When the negotiations were terminated unilaterally by the provincial government, the [respondents] followed suit in refusing to make payments. The failure of [Manitoba Housing] to pursue evictions and arrears for nearly a decade is unheard of but is reflective of the unique nature of the situation. We therefore must consider whether section 3(1) (

e) of the Act may apply in these circumstances. This

section does not speak of “emergency housing” but rather of “living accommodation to temporarily shelter persons in need”. Certainly at the outset of the relationship between [Manitoba Housing] and these [respondents], the [respondents] were persons in need.

The Webster’s Encyclopedic Dictionary, Canadian Edition, (New York, 1988) defines “temporary” as follows: Lasting, or intended to last, only for a short time The fact that fourteen years have passed without a resolution to this problem may stretch the meaning of the word “temporary” but it cannot derogate from the fact that no one intended this housing to have endured under these circumstances for that long. It is of note that the alternative definition is “intended to last”.

This definition implies that we should consider the intentions of the parties at the outset with respect to whether this situation meets this meaning. In considering the initial relationship between [Manitoba Housing] and the [respondents], the idea was that the housing provided first at Lord Selkirk was to be a temporary solution. The wording of Minister Newman’s letter also suggests that, even though the payment of rent was an aspect of the relationship, the housing at [the Portage complex] was a stepping stone to housing on reserve. …. . . . . .

Even more critical to the analysis of whether the parties intended the accommodations ... to be temporary in nature is the wording of Minister Reimer’s letter .... While he did not use the exact words of the Act , we find his meaning as Minister of Housing to be clear that this housing ... was meant to be temporary shelter. …. While [Manitoba Housing] took the position that the emergency had to have ended by 1997, it was unable to indicate how the Commission should determine when this emergency came to a conclusion.

Rather [Manitoba Housing’s] position was that the effluxion of time was sufficient to conclude the emergent nature of the situation. It is the panel’s view that the housing ... was intended to last for a short time only. As there are no facts before the Commission that the emergency ceases to exist for this group, that intention, established in 1996, continues to apply to all the [respondents]. Therefore, we find that it is temporary shelter. Given our previous finding that the [respondents] were persons in need, we must find that we are bound by the provision of section 3(1) (

e) that the provisions of the Act do not apply to the unique circumstances of these displaced persons and therefore that we do not have jurisdiction to deal with this situation. Standard of Review [ 26 ] Leave to appeal to this court was granted to Manitoba Housing on the following questions ( 2013 MBCA 36 at para. 23 ): 1. Did the … Commission err in finding that, pursuant to section 3(1) (

e) of [the 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 … Commission err in law in its

interpretation of section 3(1)(

e) of the … Act ? 3. Did the … Commission err in law in finding that the premises in which the Respondent[s] [were] living were living accommodations provided to temporarily shelter persons in need? [ 27 ] In its factum, and at the appeal hearing, Manitoba Housing argued that these questions are to be reviewed on the standard of correctness and not the deferential standard of reasonableness. It submitted that the questions concern a “true [issue of] jurisdiction,” relying on the following quote from Dunsmuir v.

New Brunswick , 2008 SCC 9 , [2008] 1 S.C.R. 190 (at para. 59 ): …. ... [T]rue jurisdiction questions arise where the tribunal must explicitly determine whether its statutory grant of power gives it the authority to decide a particular matter. …. [ 28 ] However, Manitoba Housing acknowledged that the standard of reasonableness may apply, because the Commission was interpreting its home statute.

The respondents and the Commission asserted that the standard of reasonableness applies for this very reason. [ 29 ] At the appeal hearing, the panel advised counsel for Manitoba Housing to argue the appeal on the standard of reasonableness, as it had done in its factum, given that the jurisprudence has developed extensively since Dunsmuir, as I will explain briefly. [ 30 ] In Alberta (Information and Privacy Commissioner) v.

Alberta Teachers’ Association , 2011 SCC 61 , [2011] 3 S.C.R. 654 , Rothstein J. (for the majority) wrote that there is a presumption that the standard of review is reasonableness where a tribunal is interpreting its own statute (at paras. 34, 39): …. … [U]nless the situation is exceptional, and we have not seen such a situation since Dunsmuir , the

interpretation by the tribunal of “its own statute or statutes closely connected to its function, with which it will have particular familiarity” should be presumed to be a question of statutory

interpretation subject to deference on judicial review. …. True questions of jurisdiction are narrow and will be exceptional. …. … [T]he party seeking to invoke it must be required to demonstrate why the court should not review a tribunal’s

interpretation of its home statute on the deferential standard of reasonableness. [ 31 ] For a recent overview of the development of the law in this regard, see Manitoba v. Russell Inns Ltd. et al. , 2013 MBCA

46 , 291 Man.R. (2d) 244 , in which Beard J.A. wrote (at para. 76): ….

It is also clear that the Supreme Court has significantly limited (if not abolished, for all practical purposes) the category of true questions of jurisdiction, leaving the review of a decision by an administrative entity interpreting its home statute or statutes closely connected with it to be conducted on the standard of review of reasonableness, unless the question raises a constitutional issue, is 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 or relates to the jurisdictional lines between two or more specialized tribunals. [ 32 ] The Commission is an expert tribunal created by the Legislature for the very purpose of administering the comprehensive landlord and tenant regime created under the Act .

This is not an exceptional case calling for the standard of review of correctness, nor is it a case involving a statutory scheme that provides for concurrent jurisdiction as in Rogers Communications Inc. v. Society of Composers, Authors and Music Publishers of Canada , 2012 SCC 35 , [2012] 2 S.C.R. 283 , where the standard of correctness applied. The questions at issue on these appeals concern the Commission’s

interpretation of its home statute. Given this, and the presumption articulated in Alberta Teachers’ Association , the applicable standard of review is reasonableness. See also McLean v. British Columbia (Securities Commission) , 2013 SCC 67 at paras. 21-27 , [2013] 3 S.C.R. 895 . [ 33 ] As is well known, the standard of reasonableness demands that the reviewing court show deference to the tribunal.

The approach to be taken by a reviewing court was explained b y Bastarache and LeBel JJ. in Dunsmuir (at para. 47 ): ... [C]ertain 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. A court conducting a review for reasonableness inquires into the qualities that make a decision reasonable, referring both to the process of articulating the reasons and to outcomes.

In judicial review, reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process. But it is also concerned with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law. [emphasis added] Positions of the Parties Manitoba Housing [ 34 ] Manitoba Housing argues that the Act prima facie applies because each respondent signed a tenancy agreement “prescribed under the [ Act ].” It also points to the

definitions of “tenancy agreement” and “tenant,” and the broad application of the Act set out in s. 2. [ 35 ] It asserts that the Commission did not interpret s. 3(1) (

e) in a purposive way in accordance with s. 6 of The

Interpretation Act , C.C.S.M., c. I80, and the modern principle of statutory

interpretation. Rather, it argues that it unreasonably relied on one dictionary definition of the word “temporary” and unreasonably focussed on the “uniqueness” of the respondents’ circumstances. A reading of the entire Act , it says, demonstrates that the scheme of the Act creates a regime to regulate the relationships between persons who are owners of residential property and persons who reside for extended periods of time in that property. It asserts that the actions of Manitoba Housing and the respondents, until they stopped paying rent, are consistent with the rights and obligations of landlords and tenants under the Act . [ 36 ] Further, Manitoba Housing says that s. 3(1) (

e) is meant to address emergency situations such as when homes are flooded or an apartment burns down and there is a need for shelter. It acknowledges that the living accommodation provided to the respondents in Winnipeg in 1996 reasonably fell under this exception as the respondents did not have anywhere to live. However, it says that there is no evidence that it continuously intended to provide temporary shelter outside the ambit of the Act . Rather, it argues that the evidence establishes that it continuously treated the respondents as long-term tenants and itself as landlord.

It points to the leases that were signed, the rent demanded and accepted when paid, and the services continually provided to the respondents, all as contemplated under the Act . [ 37 ] Finally, it argues that the desire of the respondents for different housing and their efforts to obtain it cannot be the basis for, or support, the conclusion that the rental units occupied by the respondents are “temporary shelter.” It observes that many people enter into tenancy agreements, pay rent, and receive services, while desiring other accommodation in the future. [ 38 ] Manitoba Housing asks this court to quash the orders of the Commission and confirm the orders of the Branch.

The Commission [ 39 ]

Section 176 of the Act entitles the Commission to participate in appeal hearings. [ 40 ] Its counsel says that the Commission made two significant findings that justify the Commission’s decisions: 1) at the time the respondents began to reside in the Portage complex they were “persons in need” and 2) the living accommodation granted to them was intended to be temporary.

[ 41 ] Counsel for the Commission agrees that the modern principle of statutory

interpretation applies. He argues that it is telling that the

preamble in the Act refers to landlord and tenant disputes involving “small sums of money” and “usual disputes” being resolved in an informal manner. He says in this case, the Commission was not faced with a “usual” type of dispute. Therefore, he argues that the decisions are entitled to deference as they meet the standard of reasonableness, having regard to all of the circumstances. [ 42 ] Counsel says that if the appeals are allowed, the matter should be sent back to the Commission to hear the respondents’ appeals.

The Respondents [ 43 ] The respondents say that they have been residing in units in the Portage complex in an “emergency” and “temporary” state since June 1996 for the reasons articulated by the Commission. They assert that since their forcible removal from their reserve in May 1996, they have been without homes or property and financial assistance from the Government of Canada. [ 44 ] The respondents do not deny that reasonable rents are due to Manitoba Housing, but they do dispute that they have the responsibility for payment of their rents since 1996.

They say that this is part of their ongoing civil litigation against the provincial and federal governments. They explain that they stopped paying rent when there was a breakdown in communication with the provincial government after which they issued their statement of claim. [ 45 ] The respondents assert that the Commission provided detailed, transparent and cogent reasons for its decision that included a consideration of the evidence and its authority as conferred by the Act .

They say that the decision logically flows from the evidence presented given that the provincial government accepted that it was emergency housing initially and Manitoba Housing could not pinpoint when it ceased to be emergency housing. In oral submissions, counsel for the respondents acknowledged that if the landlord was not a government agency, the Branch would have jurisdiction. [ 46 ] As does counsel for the Commission, they argue that the circumstances here are very different from those that are referred to in the

preamble of the Act . [ 47 ] If the appeals are allowed, the respondents say that their appeals should be returned to the Commission for determination. Analysis [ 48 ] The fundamental question on these appeals is whether the Commission erred in law in its

interpretation of s. 3(1)(

e) of the Act and its application to the facts . [ 49 ] Section 3(1)(

e) sets out a number of living accommodations that are exempt from the jurisdiction of the Act . Section 3(1) reads as follows: Non-application 3(1) This Act does not apply to (

a) living accommodation occupied on a transient basis provided in a hotel, motel, inn, tourist home or hostel, or other similar accommodation; (

b) living accommodation occupied as a vacation home for a seasonal or temporary period; (

c) except as provided in

Part 12 of The Cooperatives Act , [C.C.S.M., c. C223] living accommodation provided by a housing cooperative, as defined in

section 1 of that Act , to its members who occupy the living accommodation; (

d) living accommodation occupied by a person for penal, correctional, rehabilitative or therapeutic purposes or for the purpose of receiving care; (

e) living accommodation provided to temporarily shelter persons in need; (

f) living accommodation provided in a hospital, a hospice for persons in the late stages of a life-threatening illness, a personal care home or a residential care facility;

(

g) living accommodation provided by an educational institution to its students; (

h) living accommodation provided by a religious institution for the purpose for which it is established; or (

i) premises occupied for business or agricultural purposes with living accommodation attached under a single lease, unless the person occupying the living accommodation is someone other than the person occupying the premises for those purposes. [emphasis added] [ 50 ] When tribunals interpret their home statutes they must interpret them in accordance with the modern principle of statutory

interpretation, “the words of an Act are to be read in their entire context, in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of [the Legislature]” (Ruth Sullivan, Sullivan on the Construction of Statutes , 5th ed. (Markham: LexisNexis Canada Inc., 2008) at 1. See Entertainment Software Association v. Society of Composers, Authors and Music Publishers of Canada , 2012 SCC 34 at para. 71 , [2012] 2 S.C.R. 231 ; and Canada (Canadian Human Rights Commission) v.

Canada (Attorney General) 2011 SCC 53 at para. 33 , [2011] 3 S.C.R. 471 ( Mowat ) . [ 51 ] As explained by Sullivan, there are many considerations to be taken into account when interpreting a statute (at p. 3): …. Under the modern principle, an interpreter who wants to determine whether a provision applies to particular facts must address the following questions: • what is the meaning of the legislative text? • what did the legislature intend? That is, when the text was enacted, what law did the legislature intend to adopt? What purposes did it hope to achieve?

What specific intentions (if any) did it have regarding facts such as these? • what are the consequences of adopting a proposed

interpretation? Are they consistent with the norms that the legislature is presumed to respect? . . . . . At the end of the day, after taking into account all relevant and admissible considerations, the court must adopt an

interpretation that is appropriate. An appropriate

interpretation is one that can be justified in terms of (

a) its plausibility, that is, its compliance with the legislative text; (

b) its efficacy, that is, its promotion of legislative intent; and (

c) its acceptability, that is, the outcome complies with accepted legal norms; it is reasonable and just. [ 52 ] In Mowat , the Supreme Court of Canada considered a decision of the Canadian Human Rights Tribunal interpreting its home statute with respect to its power to award legal costs. The Supreme Court of Canada held that its decision was unreasonable because it “adopted a dictionary meaning of ‘expenses’ and articulated what it considered to be a beneficial policy outcome rather than engage in an interpretative process taking account of the text, context and purpose of the provisions in issue” (at para. 64).

See also Matthews v. Algoma Timberlakes Corp. , 2010 ONCA 468 , 102 O.R. (3d) 590 , which held that a decision of the Landlord and Tenant Board concerning the applicability of the Residential Tenancies Act , 2006, S.O. 2006, c. 17, to cottages built on land leases was unreasonable because it “was based on dictionary

definitions of ‘residence’ and did not reflect a nuanced approach based on Board member’s expertise” (at para. 3 and see paras. 30-32). [ 53 ] In my view, the errors described in Mowat and Matthews are similar to what occurred here. The Commission did not engage in the required contextual analysis of the Act .

Instead, the Commission focussed on two factors: 1) a dictionary meaning for the word “temporary,” and 2) the “unique” circumstances of the respondents. [ 54 ] The Commission relied on one aspect of the meaning of the word “temporary” found in the Webster’s Encyclopedic Dictionary , being “intended to last, only for a short time.” Dictionary meanings can be an aid in the interpretative process, especially as a starting point. However, more is required because a “dictionary meaning is a-contextual. ....

It cannot, and does not purport to, indicate the meaning of a word as used in a particular context, in relation to a particular set of facts” Sullivan at p. 36. In addition,

caution is called for because different dictionaries give different meanings. By way of example, neither Black’s Law Dictionary , 9th ed., or Webster’s New World Law Dictionary use a word like “intend” in their

definitions of the word “temporary.” Rather, their meanings reflect a period of time of limited duration: Black’s: Lasting for a time only; existing or continuing for a limited (usu. short) time; transitory Webster’s: Something that will last for only a limited period of time; transitory.

Temporary is meaningless with regard to the duration of the length of time that it will last; however, it is used to designate absence of permanence. [ 55 ] When I engage in a purposive and contextual analysis by considering the history and purpose of the Act , the text of the Act, similar legislation from other jurisdictions, and the French version of s. 3(1)(e), I must conclude that the Commission’s decisions cannot be sustained. History and Purpose of the Act [ 56 ] The Act was given Royal Assent on December 14, 1990 and was proclaimed into force on September 1, 1992.

Part IV of The Landlord and Tenant Act , C.C.S.M., c. L70 and The Residential Rent Regulation Act , R.S.M., 1987, c. R118 were repealed (by S.M. 1990-91, c. 11, ss. 198 - 199 ) and effectively integrated into the Act .

As such, the Act created an integrated and comprehensive regime to regulate residential tenancies. [ 57 ] The Act reflects the extensive recommendations made in a 1987 report to the then Minister of Housing: Manitoba Landlord & Tenant Review Committee, The Report of the Landlord & Tenant Review Committee on the Residential Rent Regulation Act and the Landlord and Tenant Act (the 1987 Report). [ 58 ] The 1987 Report recommended a single-statute system and the creation of a single-jurisdiction housing tribunal to replace the fragmented structure dealing with disputes between landlords and tenants.

Its stated rationale was “to create a more unified adjudicative system to facilitate a fair and speedy resolution of all rental housing related matters,” (at p. 110). It also recommended that the new legislation should have a

preamble indicating its intent and be written in plain language (at p. A-26). [ 59 ] Bill 42 (Manitoba, Bill 42, The Residential Tenancies Act , 2nd Sess. 34th Leg. Winnipeg, 1989) preceded Bill 13 (Manitoba, Bill 13, The Residential Tenancies and Consequential Amendments Act , 1st Sess., 35th Leg., Winnipeg 1990), which became the Act . The exempted categories of living accommodation now found in s. 3(1) of the Act were unchanged between the two bills.

A review of the debates in the Legislature with respect to Bill 42 and Bill 13 did not reveal any commentary with respect to s. 3 of the Act or any other clause-by-clause analysis . It does reveal that on November 21, 1990, during second reading of Bill 13, the Hon.

Gerald Ducharme stated that under Bill 13, the new tribunal would now be given the authority to deal with “virtually any landlord and tenant matter” up to “any amount” (Manitoba, Legislative Assembly, Debates and Proceedings (Hansard) , 35th Leg., 1st Sess. (21 November 1990) at 1627. [ 60 ] Overall, the tenor of the debate leading up to the proclamation of the Act consistently reflects the intent of the Legislature to create a comprehensive regime and single-jurisdiction residential housing tribunal to govern all landlord and tenant issues.

The Text [ 61 ] In keeping with the 1987 Report, the Act commences with the following

preamble: WHEREAS Manitobans recognize that the law respecting the rights and obligations of landlords and tenants and the regulation of rents is in need of general reform; AND WHEREAS it is in the public interest that the law respecting landlords and tenants and the regulation of rents should be set out in a comprehensive code; AND WHEREAS Manitobans recognize that the small sums of money typically at issue between landlords and tenants, the need for prompt settlement of disputes and the desirability of preserving ongoing harmonious relationships between landlords and tenants require innovative dispute resolution that is fair, informal, accessible, inexpensive, expeditious and amicable; AND WHEREAS many of the usual disputes between landlords and tenants can be resolved in an informal, administrative setting ;

AND WHEREAS it is in the interests of landlords and tenants that the knowledge and skill of persons specializing in landlord and tenant and rent regulation matters be combined in a specialist tribunal and brought to bear on the review and resolution of disputes; …. [emphasis added] [ 62 ] A

preamble is an interpretative aid and is helpful to reveal legislative purpose. It forms part of the statute and helps explain its meaning and intent. See s. 13 of The

Interpretation Act . However, the words of the

preamble cannot prevail over the words of the statute. (Pierre-André Côté, Stéphane Beaulac & Mathieu Devinat, The

Interpretation of Legislation in Canada , 4th ed. (Toronto: Thomson Reuters Canada Ltd., 2011) at 67; and Sullivan at 383-86). [ 63 ] The respondents and counsel for the Commission point to the references in the

preamble to “small sums of money” and “usual disputes,” which they say is not consistent with the Commission’s finding that the circumstances here are “unique.” In my view, their reliance on these phrases from the

preamble is too narrow. “[U]sual disputes” involving “small sums of money” were certainly a focus of the Legislature. However, it is important to read the words surrounding these phrases and the context for these references. The context for the references to “the small sums of money typically at issue” (emphasis added) and “ many of the usual disputes” (emphasis added) is the expressed desire “for prompt settlement of disputes” in an “informal, administrative setting.” [ 64 ] More importantly, the words in the

preamble cannot be read in isolation. The Act , read as a whole, demonstrates the broad and comprehensive jurisdiction of the Branch to resolve all disputes between landlords and tenants by various means, including mediation and settlement (see for example s. 152(1) of the Act ), as well as adjudication by a decision maker after a full hearing with witnesses, as was the case here. [ 65 ]

Part 1 of the Act , which is headed “Interpretation and Application” underscores the broad application of the Act . See, for example, the broad

definitions of “rental unit,” “tenancy agreement” and “tenant” as well as s. 2 of the Act : “rental unit” means any living accommodation, mobile home or a site for a mobile home used or intended for use as rented residential premises, and includes a room in a boarding house where 5 or more rooms are provided as living accommodation in the boarding house; “tenancy agreement” means a written, oral or implied agreement between a landlord and a tenant for occupancy of a rental unit and, where applicable, provision of tenant services, and includes a life lease; “tenant” means a person who occupies or is entitled to occupy a rental unit under a tenancy agreement and includes his or her heirs, assigns and personal representatives, but does not include a government agency that pays rent or a tenant services charge on behalf of a person in connection with that person's right to occupy the rental unit; Application 2 This Act applies to rental units and residential complexes and to tenancy agreements, whether made before or after this Act comes into force, despite any other Act and despite any agreement or waiver to the contrary. [ 66 ] The broad application of the Act is reinforced by a number of other provisions.

Section 3(2) provides that, “This Act does not apply to residential complexes or to classes of residential complexes that are exempted from this Act by the regulations.” However, the Legislature has not exempted any residential complexes by regulation, demonstrating that it has not seen fit to limit the broad application of the Act beyond the exceptions set out in s.

Section 4 provides that if the Act conflicts with the provisions of another statute, the Act prevails, except for certain sections of The Condominium Act (C.C.S.M., c. C170). The Act binds the Crown (s. 5), any waiver of the Act is void ( s. 6(1) ) and arrangements to defeat the Act are void ( s. 6(2) ). Prior Consideration of Section 3(1)(e)/Other Jurisdictions [ 67 ] Neither the Commission nor the courts have had occasion to interpret s. 3(1) (e). It has only recently been referenced in passing in Miller v.

Spencer , 2013 MBCA 9 , 288 Man.R. (2d) 212 (a chambers decision denying leave under the Act ) and in Manitoba Housing v. Catcheway , 2013 MBQB 177 . The case law from courts of other jurisdictions dealing with provisions similar to s. 3(1) (

e) is virtually non-existent. [ 68 ] Comparisons with other provincial legislation can be helpful. See Mowat at paras. 57-59 . The wording of exemption provisions similar to s. 3(1)(

e) in other provincial legislation varies. However, the exemptions for the purpose of providing accommodation on a short-term basis in an emergency appears to be consistent, as seen in the following table:

Province Act and Provision Wording British Columbia Residential Tenancy Act , S.B.C. 2002, c. 78, s. 4(f) “living accommodation provided for emergency shelter or transitional housing” Saskatchewan The Residential Tenancies Act , 2006 , S.S. 2006, c. R-22.0001, s. 5(c) “living accommodation provided for crisis or emergency shelters” Ontario Residential Tenancies Act , 2006 , S.O. 2006, c. 17, s. 5(f) “short-term living accommodation provided as emergency shelter” New Brunswick Residential Tenancies Act , S.N.B. 1975, c.

R-10.2, s. 1(1)(b)(xiii) “short-term living accommodations provided as emergency shelter” Newfoundland Residential Tenancies Act, 2000 , S.N.L. 2000 c. R-14.1, s. 3(4)(d) “living accommodation provided to temporarily shelter persons in need” Northwest Territories/Nunavut Residential Tenancies Act , R.S.N.W.T. 1988, c. R-5, s. 6(2) (e). “living accommodation established to temporarily shelter persons in need” P.E.I. Rental of Residential Property Act , R.S.P.E.I. 1988, c. R-13.1, 1(d); P.E.I. Reg.

EC10/89 s. 1 (d) “premises which provide therapeutic or rehabilitative services or temporary shelter such as transition houses and hostels and other such premises which have supervisory services as that term is defined in the Community Care Facilities and Nursing Homes Act ;” French Version of Section 3(1)(

e) The French version of s. 3(1) (

e) reads as follows: Exemptions 3(1) La présente loi ne s’applique pas :

e) aux habitations fournies afin de permettre aux personnes qui sont dans le besoin d’avoir un abri temporaire ; [emphasis added] [ 69 ] The French version is more precise than the English version in that it specifically refers to persons “qui sont dans le besoin d’avoir un abri temporaire” which translates to “who are in need of temporary shelter.” Conclusion [ 70 ] The intent of the Legislature was to create a broad and comprehensive scheme and administrative regime to govern residential tenancy matters in Manitoba. The text of the Act achieves this. Therefore, care must be taken to ensure that the

interpretation of s. 3(1)(

e) is consistent with this intent. [ 71 ] When the text of s. 3(1) (

e) is read in its grammatical and ordinary sense, especially when read in conjunction with the French version, its meaning is to exempt from the Act living accommodation that is provided on a temporary basis to persons in need of shelter. In other words, its purpose is to address an immediate need for shelter. This is consistent with the need to construe narrowly the exemption to give effect to the broad intent of the Legislation and the Act . This is also consistent with the exemptions for short-term and emergency living accommodation in similar legislation across Canada. [ 72 ] As already explained, the Commission did not interpret s. 3(1) (

e) in accordance with the modern approach to statutory

interpretation, which requires that the meaning of the text at issue be determined before deciding whether the text applies to the facts of the particular case. In my view, by focussing on the “unique” circumstances of the respondents, and Manitoba Housing’s unusual

response in the face of non-payment of rent, the Commission did the reverse. It used the facts, with the aid of a dictionary meaning, to determine the meaning of s. 3(1) (e). [ 73 ] The Commission made passing comment in its reasons that the respondents were “persons in need” but did not explain what that meant. I do not know whether the Commission found that the respondents were persons in need because of their “unique” circumstances or because they were in need of shelter. T he Commission did refer to the emergency situation that existed in 1996.

Manitoba Housing, rightly in my view, takes no issue that, at that time, the housing was living accommodation under s. 3(1) (e). [ 74 ] The Commission’s reasoning is premised on the original intent of the parties in 1996 that the housing provided by Manitoba Housing “was intended to last for a short time only” but that “there are no facts … that the emergency ceases to exist for this group, [and] that intention, established in 1996, continues to apply.” This reasoning ignores the comprehensive nature of the Act and the purpose of s. 3(1) (e). [ 75 ] It also ignores the 18 years during which the respondents, except for Ms Amyotte, have lived in the Portage complex with all the indicia of a landlord and tenant relationship under the Act , except for the payment of rent.

Given the extraordinary length of time that the respondents have lived in the Portage complex, the respondents’ need for shelter on a short-term basis ended a long time ago, and certainly long before Manitoba Housing made application under the Act in 2010. For the purposes of these appeals, I see no need to resolve the exact date.

If that becomes important at any time, it will be for the Commission to decide. [ 76 ] To conclude, the Commission’s reasons do not provide reasonable justification for its conclusion that Manitoba Housing could not proceed under the Act in 2010 because the rental units occupied by the respondents in the Portage complex were “living accommodation provided to temporarily shelter persons in need” nor does the outcome fall within a range of reasonable outcomes which is defensible in respect of the facts and the law. [ 77 ] A brief word with respect to Ms Amyotte’s appeal.

Her facts have no commonality with the other respondents. She left the Portage complex and, several years later, made application to Manitoba Housing for living accommodation. When Manitoba Housing assigned her a rental unit in the Portage complex, she signed a tenancy agreement. These facts are sufficient reason to conclude that the Commission’s decision with respect to Ms Amyotte is unreasonable. Decision [ 78 ]

Section 178 of the Act provides that the Court of Appeal may: Powers of Court on appeal 178 The Court of Appeal on hearing the appeal may; (

a) make any decision or order that in its opinion ought to have been made; (

b) quash, vary or confirm the decision of the commission; or (

c) refer the matter back to the commission for further consideration in accordance with any direction of the Court. [ 79 ] I would allow the appeals by Manitoba Housing. Given that the Commission’s decisions only addressed the issue of its jurisdiction, I would refer the matters arising from each appeal back to the Commission for further adjudication. [ 80 ] I would order one set of costs against the respondents in favour of Manitoba Housing, if asked for. J.A. I agree: J.A.

I agree: J.A.