DIVISIONAL COURT FILE NO.: 51/17
DATE: 20210430

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

Swinton, Pattillo and Kristjanson JJ.

B E T W E E N:

MUMTAZ AHMED ALI

Douglas Kwan

for the Applicant

Applicant

• and -

REGIONAL MUNICIPALITY OF PEEL

Jennifer Bruce for the Respondent

Respondent

HEARD at Toronto by videoconference: December 1, 2020

REASONS FOR DECISION

Kristjanson J.

[1] The applicant seeks judicial review of a decision by the Regional Municipality of Peel to deny the applicant’s request for special priority status on the Region’s waitlist for subsidized housing. The statutory scheme provides that in certain situations, eligible abused persons who are financially dependent on and living with their abusers be given special priority status, which allows them to move ahead of all other applicants on the waitlist for subsidized housing. Eligibility criteria are set out in O. Reg. 367/11 (“the Regulation”) and the Housing Services Act, 2011, S.O. 2011, c. 6, Sched. 1 (“HSA”). The Region denied the applicant’s request. The Region accepted that the applicant had been abused as a live-in caregiver by her employer. However, the Region held that as an employee, the applicant was not “financially dependent” within the meaning of the HSA and the Regulation. The applicant seeks to quash the Region’s decision, and an order in the nature of mandamus requiring the Region to place the applicant on the special priority list. I find that the Region’s decision was reasonable and I would dismiss the application for judicial review.

Factual Background

[2] Ms. Ali arrived in Canada from Pakistan on December 30, 2015 as a live-in caregiver for her employer’s mother. She lived with the family of her employer, receiving wages and room and board, until she was discharged three months later. On April 9, 2016 her employer forced her to leave the home. Upon leaving her employer’s home, the applicant stayed at a shelter for abused women. The applicant applied to Peel for subsidized housing, and for special priority status. The applicant alleges that she was abused by her employer, and the Region did not dispute this. Ms. Ali advised on her application that she was pursuing a claim for wrongful dismissal and unpaid wages against her previous employer.

Statutory Scheme

[3] The HSA is the legislation establishing requirements for housing subsidies, also known as rent-geared-to-income. As a municipal “service manager” within the meaning of the HSA, Peel applies the HSA and Regulations while delivering and administering social housing programs. Since the HSA and the Regulation have subsequently been amended, all references are to the statutory scheme in force in September 2016.

[4] Region staff assess applications for subsidized housing to determine eligibility in accordance with statutory requirements. Eligible applicants are placed on a waitlist until a unit is available. The waitlist provides a rationing system for distributing a scarce public resource on a fair basis. In 2016 there were approximately 13,000 households on the waitlist for subsidized housing in the Region, all of whom were accepted as needy and eligible for subsidized housing, but for whom there were no available spaces.

[5] While subsidized housing is made available in accordance with the waitlist, the province has mandated that victims of abuse are to receive priority for social housing: HSA, section 48 and the Regulation. Special priority status allows applicants to move ahead of all other applicants on the waitlist for housing. In 2016 the Region’s wait list for a one-bedroom unit for a single person with special priority status was 1.5 years, compared with 2.9 years for those without.

[6] In order to qualify for special priority, the type of abuse and the relationship between the abuser and abused member of the household must fall within the terms of the Regulation. Section 54(1) of the Regulation provides that an applicant is eligible to be included in the special priority household category if:

(a) The member of the household has been abused by another individual;

(b) The abusing individual is or was living with the abused member or is sponsoring the abused member as an immigrant; and

(c) The abused member intends to live permanently apart from the abusing individual.

[7] “Abuse” is defined to include “controlling behaviour”: Regulation, section 1(1).

[8] Section 1(2) of the Regulation prescribes a list of specific individuals who can be considered abusers for the purpose of the definition of abuse in the regulations. Pursuant to section 1(2) of the Regulation, abuse is done by any of the following persons against an individual:

(a) The individual’s spouse, parent, child or other relative.

(b) A person who is sponsoring the individual as an immigrant.

(c) A person on whom the individual is emotionally, physically or financially dependent.

[9] Here, the applicant argues that she qualified to be included in the special priority category because her employer was the abusing individual; as a live-in caregiver, she was living with her abuser; the controlling behaviour met the definition of abuse; and she was financially dependent on him as an employee.

Decisions Below

[10] On August 4, 2016 the applicant’s request to be granted special priority status on the subsidized housing waitlist pursuant to section 48(1) of the HSA was denied. Region staff denied the applicant’s request on the basis that (a) the applicant was not in a familial relationship with her abuser, and (b) the applicant’s abuser was her employer. The applicant was found to be eligible for rent-geared-to-income housing, and the applicant was added to the waitlist without special priority.

[11] Section 155 of the HSA required a service manager to have a system for dealing with reviews sought by applicants regarding determinations that the household is not in a special priority category. That review at the time was governed by the requirements of the HSA and the Regulation, section 138, and required an independent review by a person knowledgeable about the HSA and Regulation.

[12] Ms. Gail Williams, a Region Appeal Manager and a specialist pursuant to the Regulation, section 138, reviewed Ms. Ali’s appeal and recommended that the decision should stand. The final decision by Ms. Jennifer McLaughlin, Manager in Housing Services at the Region, by letter dated September 16, 2019, confirmed that the applicant did not qualify for the special priority list.

Jurisdiction

[13] The Divisional Court has jurisdiction to hear this application under section 2(1) of the Judicial Review Procedure Act, R.S.O. 1990, c. J.1.

Issues:

[14] Was the Region’s decision to refuse the applicant special priority status for the subsidized housing waitlist unreasonable, given the HSA and the Regulation?

Standard of Review

[15] The parties agree that reasonableness is the standard of review, applying the Supreme Court of Canada’s decision in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 at para. 37.

Analysis

[16] In this case, the Region first considered that the applicant was not in a familial relationship with the abuser. The inquiry did not stop there. The Region went on to consider whether there was a relationship of financial dependency. The Appeals Specialist, Ms. Williams, recommended that the appeal be denied. She specifically found that the intent of the policy is to provide earlier access to affordable housing to victims of domestic abuse fleeing the home where the abuse occurred. She referred to the legislation and policy specifying who the abusing individual can be. She also accepted that the applicant provided a record of abuse, and the abuse occurred in a business relationship between an employee and an employer. She found that Ms. Ali’s financial security was dependent upon her being employed, and this changed when she was terminated from her position in the home. Based on these findings, Ms. Williams found that Ms. Ali did not meet the criteria for special priority and recommended that the decision should stand.

[17] The decision-maker, Ms. McLaughlin, reviewed this recommendation as well as the file materials. She found that the applicant was an employee and was pursuing a claim against her employer for wrongful dismissal and unpaid wages.

[18] The decision-maker held that legislation and policy specify who the abuser can be, and the “intent of the special priority is to provide earlier access to affordable housing for victims of abuse within a familial relationship.” She held that the relationship was employer/employee, and the financial dependency was within this context. She stated:

You were in a business relationship, and your source of income ceased when the business relationship ended with the termination of your employment.

[19] The applicant argues that the decision was unreasonable because the Region adopted a narrow interpretation of the HSA, which is benefits-conferring legislation, contrary to the purpose of the special priority provisions of the Regulation and established principles of statutory interpretation. The applicant submits that the Regulation does not require a familial relationship, nor does it exclude from priority status an individual who has experienced abuse from an employer or non-familial person upon whom the individual is financially dependent. Rather, the applicant argues that where a live-in employee receives wages, food and lodging, this creates financial dependency within the meaning of the HSA and Regulation, and it was unreasonable to find otherwise.

[20] I do not agree. I find the decision was reasonable. A reasonable decision is “one that is based on an internally coherent and rational chain of analysis and that is justified in relation to the facts and law that constrain the decision maker” (Vavilov, at para. 85).

[21] The Region found that an employment relationship is not the type of financial dependency encompassed by the Regulation. This is consistent with the purposes and reality of the governing legislative regime. The history of the program has focused on assisting abused women to escape domestic violence. While this has expanded over time, the regulatory scheme has focused on protecting the safety of household members by enabling them to leave an unsafe and abusive situation. The interpretation adopted by the Region is one which enables those whose safety is at risk to receive priority placement so they can separate permanently from their abuser. Although generally remedial legislation is to be interpreted broadly, the reviewing court also considers whether the reasons accord with the “purposes and practical realities of the relevant administrative regime” and represent “a reasonable approach given the consequences and the operational impact of the decision”: Vavilov, para. 93.

[22] Here, the issue is where the applicant will stand on a waitlist. This requires the decision-maker to balance the competing interests of others on the waitlist, who are not before the court, and raises public policy issues about rationing scare resources. This decision accords with the purposes and public realities of the housing priority scheme, which enables applicants whose safety is at risk to separate permanently from their abuser as soon as possible.

[23] The applicant was a live-in caregiver entitled to the protections of the Employment Standards Act, 2000, S.O. 2000, c. 41. Any financial dependence is limited to the duration of the employment relationship; such a relationship is finite, and when it ends, there is no financial dependence. The applicant could apply for another job, and in this case, she asserted legal rights through civil proceedings for wrongful dismissal and unpaid wages, alternatives which are not available to those who are victims of intimate partner violence, for example.

[24] The court on judicial review of statutory interpretation issues must defer to reasonable decisions made by statutory decision-makers, giving effect to the legislature’s intent: Canada Post Corp. v. Canadian Union of Postal Workers, 2019 SCC 67 at para. 40. Interpreting “financially dependent” to exclude an employer/employee relationship in the context of the special priority list is a reasonable decision consistent with legislative intent and the statutory and regulatory context surrounding the scarce resource of subsidized housing.

The Record on Judicial Review

[25] The applicant filed two additional affidavits but did not rely on those affidavits and the court did not consider them.

[26] The Region filed an affidavit of Jennifer McLaughlin, Manager in Housing Services in the Human Services Department of the Regional Municipality of Peel, sworn August 18th, 2020. The panel reserved on the admissibility of the affidavit. Paragraphs 2-7 and 11-13 of the affidavit provide background information, described by Stratas J.A. as “non-argumentative orienting statements that assist the reviewing court in understanding the history and nature of the case that was before the administrative decision-maker” (Bernard v. Canada Revenue Agency, 2015 FCA 263, para. 21). However, paragraphs 8-10 provide information about the Region’s housing waitlists after the date of the decision under review and are excluded, since they were not before the decision-maker and are thus not relevant. Paragraphs 14-26 of the affidavit set out the record before the decision-maker, including the file review memorandum and recommendation by Gail Williams at Exhibit “D”. The affidavit, except for paragraphs 8-10, is properly part of the record on judicial review.

Conclusion

[27] The application for judicial review is dismissed. The parties have agreed to bear their own costs and accordingly, there is no order as to costs.

Kristjanson J.

I agree _______________________________

Swinton J.

I agree _______________________________

Pattillo J.

Date of Release: April 30, 2021

CITATION: Ali v. Peel (Regional Municipality), 2021 ONSC 3202

DIVISIONAL COURT FILE NO.: 51/17

DATE: 20210430

ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT

Swinton, Pattillo and Kristjanson JJ.

BETWEEN:

Mumtaz Ahmed Ali Applicant

– and –

Regional Municipality of Peel Respondent

REASONS FOR DECISION

Kristjanson J.

Date of Release: April 30, 2021