MacKenzie v. Ottawa Community Housing Corporation, 2021 ONSC 1640

CITATION: MacKenzie v. Ottawa Community Housing Corporation, 2021 ONSC 1640

DIVISIONAL COURT FILE NO.: DC-20-2587

DATE: 20210305

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

Ellies R.S.J., Swinton, and McCarthy JJ.

BETWEEN:

Charlas MacKenzie

Applicant

– and –

Ottawa Community Housing Corporation

Respondent

– and –

The City of Ottawa

Respondent

Sylvia Chapman, for the Applicant

Gabriel Cormier, for the Respondent, Ottawa Community Housing Corporation

Geneviève Langlais, for the Respondent, City of Ottawa

HEARD at Ottawa (by videoconference): February 23, 2021

McCARTHY J.

REASONS ON APPLICATION FOR JUDICIAL REVIEW

INTRODUCTION

Introduction

1On June 7, 2019 the Respondent Ottawa Community Housing Corporation (“OCHC”) issued a revocation and termination of the Applicant’s rent-geared-to-income (“RGI”) assistance. A review panel of the Respondent City of Ottawa (“the Panel”) upheld the OCHC decision on December 18, 2019.

2In this application for judicial review, the Applicant seeks: i) an order setting aside the respective decisions of the Respondents; ii) an order in the nature of mandamus requiring the Respondents to maintain him in his current rental unit or; iii) in the alternative, an order that the issue of the Applicant’s entitlement to RGI assistance be sent back to the Respondents for determination with appropriate directions from this Court.

3The Housing Services Act, 2011, S.O. 2011, c. 6, Sched. 1 (“the HSA") contains a statutory framework for RGI assistance. RGI assistance provides eligible beneficiaries with a rental subsidy which serves to reduce the portion of rent otherwise payable by the beneficiary to the landlord. The City of Ottawa (“the City”) is a designated service manager under the HSA; the City assigns certain defined duties to social housing providers such as the OCHC which then act as landlords of the RGI units.

Factual Background

Factual Background

4The Applicant began residing in a three-bedroom townhouse unit provided by OCHC in 2012 (“the unit”). He resided in that unit together with his two daughters. As a person with a disability receiving income first from Ontario Works and then the Ontario Disability Support Program (“ODSP”), the Applicant qualified for an RGI subsidy when the unit became available.

5On June 22, 2018, having been charged with a criminal offence, the Applicant became subject to bail conditions which prohibited him from having contact or association with his two daughters, and from residing or being alone with anyone under the age of 16. On November 29, 2018, a further bail condition required the Applicant to reside with his surety at her residence. The Applicant failed to inform the OCHC of these various bail conditions or the fact that the children were no longer residing in the unit.

The Decisions Under Review

The Decisions Under Review

6On or about June 5, 2019, the OCHC became aware of the November 2018 bail conditions. On the strength of that information, the OCHC issued the June 7, 2019 decision in which it was determined: (i) that the Applicant had failed to report the change in household composition when required to do so; and (ii) that the Applicant’s entire household had been absent from the unit for 60 days. Based upon that determination, the OCHC decided that the Applicant was no longer eligible for RGI assistance. As a result, his monthly rent reverted to market rate as of October 1, 2019.

7The Applicant sought an internal review of the June 2019 decision. A hearing took place before a three-person panel on December 6, 2019. On December 18, 2019, the Panel released its notice of decision in which it upheld the June 2019 decision of the OCHC.

THE STANDARD OF REVIEW

The Standard of Review

8The parties agree that the standard of judicial review for the decisions in question is reasonableness.

9Reasonableness is concerned with safeguarding the legality, rationality and fairness of the administrative process. What is reasonable in the situation depends on the constraints imposed by the legal and factual context affecting the particular decision under review: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, at para. 90.

10A decision may be unreasonable if it contains internally incoherent reasoning (i.e. there is no rational chain of analysis which led to logical reasons) or if the decision maker failed to abide by or accord due weight to legal and factual constraints: see Vavilov at paras. 101 and 105.

11In conducting its review, the court must remain mindful of the principle of responsive justification: individuals are entitled to greater procedural protection when the decision in question has potential for significant personal impact or harm. The Supreme Court of Canada explained what that principle means for administrative decision makers in Vavilov at paras. 133 and 135:

The principle of responsive justification means that if a decision has particularly harsh consequences for the affected individual, the decision maker must explain why its decision best reflects the legislature’s intention. This includes decisions with consequences that threaten an individual’s life, liberty or livelihood.

Many administrative decision makers are entrusted with an extraordinary degree of power over the lives of ordinary people, including the most vulnerable among us. The corollary to that power is a heightened responsibility on the part of administrative decision makers to ensure that their reasons demonstrate that they have considered the consequences of a decision and that those consequences are justified in light of the facts and the law.

12There are other important principles established by the jurisprudence which a reviewing court should bear in mind when undertaking judicial review in cases of this nature. In Simpson v. Toronto Community Housing, 2016 ONSC 76 (Div. Ct.), at para. 19, this Court confirmed that the RGI review process engages the expertise of panel members who are thoroughly familiar with these types of matters.

13In Kowalczyk v. Peel Access to Housing, 2005 1082 (Ont. Div. Ct.) at para. 7, this Court noted that decisions made by service managers in the context of RGI assistance are polycentric decisions, which is to say that they affect others who are not before the court (in this case eligible persons who are awaiting housing vacancies and subsidies). The decisions of these boards and tribunals which administer publicly funded programs with limited funds are entitled to deference from the courts.

STATUTORY PROVISIONS

Statutory Provisions

14The impugned decisions were made pursuant to regulations under the HSA and local rules adopted by the service manager under the HSA for cessation of eligibility for RGI assistance and maximum absence from a unit for which a household receives RGI assistance.

15Section 28 of Ontario Regulation 367/11, General (“the regulation”) under the HSA provides (in part) as follows:

Cessation of eligibility – failure to notify of changes or of events

28. (1) A household ceases to be eligible for rent-geared-to-income assistance if the household fails to notify the service manager, in accordance with this section, of a change described in subsection (2).

(2) The change referred to in subsection (1) is a change to any information or document that the household previously provided to the service manager and that the household was required to provide for the purposes of determining the household’s eligibility or continued eligibility for rent-geared-to-income assistance or for the purposes of determining the amount of rent payable by the household.

(3) Subject to subsection (4), a notification of a change must be given to the service manager within 30 days after the change or within such longer period after the change as the service manager may establish.

(4) The service manager may extend the period of time for notifying the service manager, either before or after the period has expired.

(7) Despite subsection (1), the service manager may determine that the household remains eligible if the service manager is satisfied that there are extenuating circumstances.

16Section 37 of the regulation provides as follows:

Local rule ---- maximum absence from unit

37. (1) A service manager may make a local eligibility rule providing for a household to cease to be eligible for rent-geared-to-income assistance if all the members of the household are absent from the unit for which the household receives rent-geared-to-income assistance for more than then the maximum number of days specified in the local eligibility rule.

(2) The local eligibility rule may provide for a maximum number of consecutive days, for a maximum number of days in a year, or for both.

(3) The maximum number of consecutive days specified in the local eligibility rule must be at least 60 days.

(4) The maximum number of days in a year specified in the local eligibility rule must be at least 90 days.

(5) The local eligibility rule must provide that a member of the household who is absent for medical reasons is deemed not to be absent.

17In its local policy directive, the City adopted 60 days as the maximum number of consecutive days that a household may be absent but permits the time period to be extended in “exceptional circumstances.”

KEY POSITIONS OF THE PARTIES

The Applicant’s Position

Key Positions of the Parties

18The Applicant asserts that the two decisions were unreasonable on the basis that they:

i) Applied the wrong legal test in determining that the Applicant was “absent” from his home;

ii) Applied the wrong legal test related to the Applicant’s temporary changes for the care of his children; and

iii) Failed to properly consider the Applicant’s extenuating circumstances.

The Respondents’ Position

The Respondents’ Position

19The Respondents advance similar positions in arguing that the Application should be dismissed. Simply put, by failing to report changes in the composition of his household and being absent from the unit for more than 60 days, the Applicant failed to meet the legislative requirements to maintain his eligibility for the RGI subsidy. The decisions of both the OCHC and the City were reasonable, transparent, and rendered within the legal and factual constraints governing these bodies.

DISCUSSION

Discussion

20I have reached the conclusion that the Application for judicial review should be dismissed. My reasons are as follows.

Meaning of the Term “Absent”

Meaning of the Term “Absent”

21In Vavilov, the Supreme Court of Canada made it clear that, with very narrow exceptions, the reasonableness standard of review applies equally to matters of fact and to matters of law, including a decision maker’s interpretation of governing legislation: at para. 115. Referring to the “modern principle” of statutory interpretation, the Court held at paras. 118 and 121:

Those who draft and enact statutes expect that questions about their meaning will be resolved by an analysis that has regard to the text, context and purpose, regardless of whether the entity tasked with interpreting the law is a court or an administrative decision maker. An approach to reasonableness review that respects legislative intent must therefore assume that those who interpret the law — whether courts or administrative decision makers — will do so in a manner consistent with this principle of interpretation.

The administrative decision maker’s task is to interpret the contested provision in a manner consistent with the text, context and purpose, applying its particular insight into the statutory scheme at issue.

22The Applicant argues that he was not absent from the unit for more than 60 days. He argues that “absent” means “not present.” While his bail conditions require him to reside with his surety, he argues that this requires only that he sleep at the surety’s home. He submitted to the Panel that he was present in the unit daily, as he returned to the unit every day, ate and showered there, and mixed with his neighbours. He only returned to the surety’s home to sleep.

23The Panel concluded that the Applicant was absent from the unit because the terms of his bail required him to reside at the surety’s home, and that was his legal domicile. At p. 4 of its reasons, the Panel stated:

The Review Panel considered the purpose of the legislation which is to provide RGI assistance to eligible households in units prescribed under the regulations. If a household is not occupying the rental unit for residential purposes, then they are not entitled to RGI assistance. It is reasonable to conclude that when households are not using their units as intended (for residential purposes), for extended or cumulative periods of time, they are absent from the unit. The Panel finds that although you verbally explained that you spend time regularly at the unit, store belongings and receive mail at the address, that you do not occupy the unit for residential purposes as intended by the legislation.

24I find that it was reasonable for the OCHC and the panel to conclude that the Applicant was “absent” from the unit for more than the prescribed 60 days.

25Section 1(a) of the HSA provides that the purpose of the Act is, “to provide for community based planning and delivery of housing and homelessness services with general provincial oversight and policy direction”.

26The HSA has defined RGI assistance as “financial assistance provided in respect of a household to reduce the amount the household must otherwise pay to occupy a unit”: s. 38.

27“Unit” is defined at s. 2 of the HSA as “a unit intended for use as residential accommodation in a housing project.”

28A plain reading of residential accommodation, especially when viewed in the context of subsidized housing legislation, means a place to live and stay. This must certainly include sleeping at the unit, as the Panel reasonably concluded.

29The interpretation put forward by the Applicant that, by attending at and carrying out some aspects of daily living at a unit, a person cannot be said to be absent from that unit, is not in harmony with the clear intention of the legislative scheme.

30With a waiting list of 13,500 households (including about 2,600 households waiting for three-bedroom accommodation of the kind here), the City is clearly facing a high demand for a limited number of units. The number of RGI subsidies is also limited to 16,502. Permitting a person such as the Applicant to retain a three-bedroom unit while all members of the household are sleeping elsewhere would not be harmonious with the purpose of the publicly funded housing scheme. It could also lead to the absurd outcome that would have publicly funded subsidized units not being used for the residential purposes intended.

31I conclude that both the OCHC and the Panel applied a reasonable interpretation of the wording of their enabling legislation in concluding that all members of the Applicant’s household had been “absent” from the unit for more than 60 days.

Failure to Report Changes

Failure to Report Changes

32There was nothing unreasonable about the conclusion reached by both the OCHC and the Panel that the Applicant failed to report a change in household membership when he was required to do so.

33Both the OCHC and the City relied on uncontradicted information that the two children listed as occupants of the unit had not resided there since June 2018. In rendering its decision, the Panel specifically referred to the relevant sections of the Service Manager Directive 17-02 and ss. 28 and 29 of the HSA.

34I cannot accept the Applicant’s submission that the unreported information would not have affected his eligibility or the suggestion that the change to the household size was only temporary and need not have been reported. One, there was (and is) no date for the return of the Applicant’s daughters from the care of the Children’s Aid Society to the household. Two, the composition of the household is clearly information “previously provided to the service manager” under s. 28(2). Three, that information is highly relevant since a household ceases to be eligible for RGI assistance if the household occupies a unit that is larger than the size permissible in the local rule. The local rules require that for a child to be entitled to a bedroom, that child must reside in the household 50% of the time. Finally, the legislative scheme deals with the current composition of a household; the only allowance for eventual/potential members is reserved for the case of pregnancies. Therefore, the Panel reasonably concluded that the Applicant had failed to inform the OCHC of a change in the household composition in a timely manner.

Exercise of Discretion (Exceptional and Extenuating Circumstances)

Exercise of Discretion (Exceptional and Extenuating Circumstances)

35Both the regulation under the HSA and the service manager local rules allow for the OCHC to extend the maximum period of absence from a unit in exceptional circumstances.

36As well, despite a failure to report changes within 31 days, the service manager “may determine that the household remains eligible if the service manager is satisfied that there are extenuating circumstances”: O. Reg. 367/11, s. 28(7).

37It is worth noting that the regulation stipulates that the local eligibility rule must provide that a member of the household who is absent for medical reasons is deemed not to be absent. There are no other statutorily mandated exceptions to the absence rule.

38There is simply no basis to conclude that the service manager was unreasonable in exercising her discretion not to allow an extension or continue the Applicant’s eligibility. One, there is no obligation on the service manager to engage in that exercise; it is entirely permissive. Two, it is apparent from both the internal hearing form and the notice of decision that the decision makers were in possession of the relevant information. Three, the Panel’s decision clearly sets out the evidence it considered, and it turned its mind to the potential for exceptional circumstances. Having reviewed all the Applicant’s information, the Panel fairly concluded that there was no other information provided which could constitute exceptional circumstances for not reporting the 2018 household change or to permit the absence from residing at the unit.

Responsive Justification and Other Considerations

Responsive Justification and Other Considerations

39I am unable to find that the decisions violated the principle of responsive justification. The Applicant was provided with clear and cogent reasons why the decisions were taken. The OCHC provided the Applicant with precise details of how the June 7, 2019 decision could be reviewed. Before the Panel, the Applicant was given full opportunity to be heard and to bring his extenuating circumstances to the attention of the decision-makers. The two decisions applied the legislative scheme and considered all the salient facts. The reasons of the Panel certainly reflect that it remained mindful of the consequences of its decision (i.e. loss of eligibility for subsidy). The Panel also explained how it considered the purpose of the legislation in arriving at its decision.

40This Court is compelled to consider an administrative decision as a whole and to view it contextually. As directed by the Supreme Court of Canada in Vavilov, at para. 116:

[J]ust as it does when applying the reasonableness standard in reviewing questions of fact, discretion or policy, the court must examine the administrative decision as a whole, including the reasons provided by the decision maker and the outcome that was reached.

41The outcome in the present case, although unfavourable and inconvenient for the Applicant, cannot be viewed as unfair. Had he provided the household information required, he would have been put on a list for transitioning to a smaller unit. As well, his present situation has him residing with his surety. There is no evidence that he is homeless or without shelter. There has been no change in his bail conditions; he remains under a non-contact order with his two daughters. That situation was created by the pending criminal charges, not by the decisions in question. Viewed holistically, the outcome born of these decisions will free up a subsidized three-bedroom unit for an eligible household. As a result, the purpose of the publicly funded housing scheme is advanced, not subverted.

42Finally, I am not persuaded that the amendment to the regulation in 2020 should have any bearing on this matter. Section 28(2.1) now reads (in part) as follows:

(2.1) The events referred to in subsection (1) are the following:

1. A permanent change in the composition of the household.

43That amendment was not in existence at the time these two decisions were handed down. The decision makers properly applied and interpreted the legislation as it existed at the time.

44Regardless, there was no evidence before the OCHC, the Panel or indeed this Court that the change in the composition of the Applicant’s household is anything but permanent.

DISPOSITION

Disposition

45For the foregoing reasons, the application for judicial review is dismissed. Pursuant to the agreement reached by the parties, there shall be no order as to costs.

McCarthy J.

I agree _______________________________

Ellies R.S.J.

I agree _______________________________

Swinton J.

Released: March 5, 2021

CITATION: MacKenzie v. Ottawa Community Housing Corporation, 2021 ONSC 1640

DIVISIONAL COURT FILE NO.: DC-20-2587