COURT FILE NO.: DC-04-009677-00

DATE: 20050121

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: Kowalczyk v. Peel Access to Housing

HEARD: January 17, 2005

BEFORE: Lane, Molloy and Donohue, JJ.

COUNSEL: Janice Lepiten, for the applicant

Ann Dinnert, for the respondent

E N D O R S E M E N T

[1] The applicant seeks judicial review of the decision made by the Service Manager of the Regional Municipality of Peel refusing to extend the time for the applicant to apply for special priority status for rent-geared-to-income assistance in Peel. The applicant qualified for subsidized housing, and also would have qualified for the priority status accorded in certain circumstances to persons who are victims of abuse, but for the fact that she failed to apply within the prescribed time. The reason she was unable to apply within the prescribed time was that she lacked the required citizenship or landed immigrant status (a requirement subsequently amended in the legislation, but not in time to assist this applicant.

[2] The essence of the applicant’s submissions was that the Service Manager did not answer the question remitted to him, and thereby lost jurisdiction for error of law. The question remitted was whether the circumstances were such that he should exercise the discretion granted to him under the Regulation to add her to the list despite her lateness. There are six relevant factors. The applicant’s submission was that the most relevant for her purposes is section 24(14)(f), under which the Service Manager is to consider whether:

(f) the abused member is attempting to use the provision of

rent-geared-to income assistance as part of an overall program of

recovery and re-establishment of a safe and normal life.

[3] It is apparent that the applicant is engaged in trying to restore her life to some stability and that it would be difficult, on these facts, to find that she did not meet the terms of this factor. However, that could be said of many, perhaps most of the persons applying for priority status; the provision of a stable home is an important factor in rebuilding a life shattered by abuse. Although the applicant puts great stress on this factor, it is but one of six, and cannot be decisive on its own.

[4] While the Service Manager did not expressly refer to this factor in his letter of decision, he certainly would have understood the six factors enumerated in his governing Act. He was alert to, and mentioned, the distress occasioned to the applicant by her circumstances, which is surely a reference to the lack of a stable home. His reasons refer to other important criteria which he clearly thought out-weighed the applicant’s submissions. In particular, he referred to the purpose of the priority scheme as “to help remove you from a situation of risk”.

[5] This view of the purpose of the priority provisions was attacked by the applicant, but we agree with the Service Manager. The priority criteria in Regulation 24 apply only to abused persons, but having been abused in the past is not enough to gain priority. Of the six criteria, all of which must be considered in the exercise of the discretion, two refer to the state of knowledge of the applicant as to the program and the three month time limit; two refer to the existence of a risk of further abuse; one refers to financial hardship arising from the expense of legal proceedings, and one refers to re-establishing a stable life.

[6] The applicant knew of the program and the time limit, and so does not meet the first two criteria. It was impossible for her to apply within the time limit because she was ineligible due to her immigration status. While consideration might be given to her for relief from these problems, she cannot meet the two criteria regarding the risk of further abuse, nor was her financial hardship related to legal expenses arising from proceedings related to her past abuse. The only one of the criteria which the applicant clearly meets is the sixth and that is the one focused on by counsel.

[7] As noted, that is a factor likely to be applicable to many persons seeking assisted housing, and so does not, alone, differentiate the applicant from the “many thousands of applicants who are likewise experiencing difficult circumstances” referred to in the decision letter. It is important to recognize that the decision he was called upon to make was not simply whether the applicant deserved assisted housing; she obviously does. The issue was whether she should have priority over others in equally distressing and needy circumstances who are, in addition, at risk of further abuse. This is thus a polycentric decision: one which affects others who are not personally before the court and which engages policy principles. Such decisions, made by persons or Boards or tribunals in the field, and charged with administering public programs with limited funds, are to be given some deference by the courts: Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982 at para 36.

[8] In our view, the Service Manager did not err in his analysis that the main purpose of priority was the removal of applicants at risk of further abuse from the situation of risk. He is administering a program, which commands a small fraction of the resources necessary to deal with the need. It is not an error for him to focus the resources of the priority scheme on those at risk of further abuse; it is an exercise of the discretion granted to him by the Act and Regulations. The result at which he arrived is not an unreasonable one

Lane J.

Molloy J.

Donohue J.

Date: January 21, 2005