Susan Miller v. Toronto Community Housing Corporation and Toronto Community Housing Corporation RGI Review Body
CITATION: Susan Miller v. Toronto Community Housing Corporation and Toronto Community Housing Corporation RGI Review Body, 2022 ONSC 2092
DIVISIONAL COURT FILE NO.: 444/19
DATE: 20220404
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Stewart, Perell and D.L. Edwards JJ.
BETWEEN:
SUSAN MILLER
Applicant
– and –
TORONTO COMMUNITY HOUSING CORPORATION and TORONTO COMMUNITY HOUSING CORPORATION RGI REVIEW BODY
RESPONDENTS
Benjamin Mingo for Applicant
Doug Letto for the Respondents
HEARD at Toronto (by videoconference): March 15, 2022
D.L.EDWARDS J.
INTRODUCTION
[1] This is a judicial review by the Applicant, Ms. Miller, who seeks an order setting aside two decisions of the Respondent, the Toronto Community Housing Corporation RGI Review Body (“Review Body”) dated February 15, 2019 and April 12, 2019, and directing the Toronto Community Housing Corporation (“TCHC”) to review her rent calculations or, alternatively, to remit the matter for reconsideration by the Review Body.
[2] The Respondents ask that the application be dismissed.
[3] For the reasons that follow, I grant the application and remit Ms. Miller’s rent calculation to the Review Body.
LEGISLATIVE BACKGROUND
Housing Services Act, 2011
[4] The legislature passed the Housing Services Act,[^1] (the “HSA”) to provide the legal framework for community-based planning and delivery of housing and homelessness services with general provincial oversight and policy direction.
[5] The City of Toronto is a Service Manager under the HAS. The TCHC, which is a Local Housing Corporation under the HSA, assists the City of Toronto in fulfilling its obligations. TCHC rents the vast majority of its residential units at a subsidized rate. It administers rent-geared-to-income assistance in accordance with the HSA. The Review Body is not a distinct legal identity but rather is an arm of the TCHC dealing with the subsidized residential units.
RGI Assistance
[6] Rent-geared-to-income assistance (“RGI assistance”) is addressed in Part V of the HSA. RGI assistance is financial assistance provided in respect of a household to reduce the amount it must otherwise pay to occupy a unit: s. 38. Eligibility for RGI assistance is determined in accordance with prescribed provincial eligibility rules, which are set out in General, O. Reg. 367/11, and local eligibility rules made by the Service Manager: s. 42(1).
[7] In understanding the discussion below, it shall be important to keep in mind that pursuant to the requirements of the HAS, the Service Manager; i.e., the City of Toronto sets the rules applied by the Review Body, which is an arm of the TCHC.
[8] Applications for RGI assistance are made to the Service Manager, in the form authorized by the Service Manager, and must include certain information and documents, including those required by the Service Manager: s. 44.
[9] The Service Manager determines, inter alia:
• eligibility for RGI assistance (s. 45), and continuing RGI assistance (s. 52), in accordance with the eligibility rules and any prescribed requirements.
• the quantum of rent payable by a household receiving RGI assistance, in accordance with prescribed requirements (s. 50).
[10] The Service Manager is required to review eligibility for RGI assistance on a periodic basis or such other times, as the Service Manager considers appropriate. Finally, rent is calculated based on the total household income in accordance with the rules established by the Service Manager.
Reviews and Review Process
[11] Part X of the HSA deals with reviews. A household can request a review: s. 156. The Statutory Powers Procedure Act,[^2] does not apply to these reviews: HSA, s. 158.
[12] The Service Manager must have a system for dealing with these reviews: subs. 155(1). This system, which is contained in the City of Toronto’s RGI Administration Manual, must comply with prescribed requirements, and include both a provision for a Review Body and procedural rules for reviews: ss. 155(3) and (4). These rules must state when a review may be requested and when a decision by the Review Body must be made: O. Reg. 367/11, 138(1)(i) and (ii). The Review Body can substitute its decision for the one that was reviewed, must give its decision and reasons in writing, and it must give notice of its decision and reasons: HSA, s. 158. For present purposes, I emphasize that the Review Body must give a reasoned decision in writing.
[13] The City’s RGI Administration Manual addresses a number of other matters, related to the RGI Reviews process. The TCHC RGI Review Body Process document further codifies the applicable review process. It details certain requirements concerning notices of decision. Paragraph 2 states:
- Request for RGI Review
Household requests review:
Loss of Subsidy Reasons:
Requests for review must be made within thirty (30) calendar days (plus five mailing days, if the request if mailed by the tenant) after the notice of decision has been given to the Household by Toronto Community Housing. If the Household missed the deadline they can still submit a Request for RGI Review form up to the effective date on the letter.
Rent Calculation:
Requests for review must be made within thrity (30) calendar days (plus five mailing days, if the request is mailed by the tenant). If the Household missed the deadline they can still submit a Request for RGI Review up to the next annual review date. (For example: 12 months from the effective date of the rent charge).
Exception: Retro rent charges. A Household must request a review no later than 12 months after the date on the notice of decision letter.
All other reasons:
Requests for review must be made within thirty (30) calendar days (plus five mailing days, if the request is mailed by the tenant).
If no request for RGI Review is received within the review period as noted above the decision is final.
In exceptional circumstances, if the Household missed the deadline they can submit a Request for RGI Review. The RGI Review Body will make a decision whether to proceed with the review.
Exceptional circumstances may include, but are not limited to:
• If a one person Household was hospitalized and incapable of receiving or responding to the Notice of Decision within the Request for RGI Review period, the request for RGI Review must be made as soon as possible after the Household received the Notice of Decision.
• The Household must provide documentation to prove exceptional circumstances.
FACTUAL BACKGROUND
[14] The Applicant, Ms. Miller, is a single mother of two. She has been a tenant of the TCHC for many years and has at various points received RGI assistance. After her youngest child, now 12 years’ old, was born, Ms. Miller has an ongoing struggle paying the rent.
[15] Ms. Miller’s child has a disability that significantly impacts upon Ms. Miller’s availability for employment. From time to time, she is absent from work to tend to his health. Ms. Miller, who gets paid on the clock, has her weekly salary reduced accordingly.
[16] In 2010, the year her child was born, the TCHC filed an application with the Landlord and Tenant Board (“Board”) to terminate the tenancy with Ms. Miller for non-payment of rent, but the matter was resolved without an eviction. Between 2012 and 2015, Ms. Miller negotiated four mediated agreements with TCHC at the Board related to her outstanding rent arrears.
[17] Ms. Miller has received several Notices of Decision since at least 2013, including:
• on October 19, 2017, regarding an increase in rent;
• on April 5, 2018, regarding a decrease in rent; and
• on October 29, 2018, regarding the loss of RGI assistance for her failure to submit the required annual review information.
First Decision
[18] On February 12, 2019, Ms. Miller submitted a request for rent review and a request for an extension of time. As for the latter, she acknowledged the tardiness of her request but submitted that, because of her son’s condition and her role as “a mother and his sole caretaker ... issues around my rent have fallen on [off] my list of priorities.” As for the request for review, she disputed how her rent had been calculated and, consequently, her arrears of rent as of January 14, 2019. She claimed that her rent ought to have been calculated in accordance with her Notices of Assessment (NOA). She attached her NOAs for 2015, 2016 and 2017, letters from her child’s doctors, his school attendance reports, and a letter from his principal. While her point was not clearly made, the problem was that her salary - actually received – was less than the salary used to calculate the rent subsidy.
[19] Significantly, she also requested a review of her rent from 2010 to 2014, noting that she was in the process of attaining the NOAs for those years.
[20] On February 15, 2019, the Review Body responded to Ms. Miller’s request for a review of rental arrears. It held that it did not have jurisdiction to review rental arrears and that the deadline to request a review of the decisions made from 2010 through 2017 had passed. It included an excerpt from the TCH RGI Review Process and noted that Ms. Miller could submit a request to have the Review Body conduct a review of the “current decision”.
Second Decision
[21] On March 19, 2019, Ms. Miller’s submitted a second request for review. This was done with the support of the Office of the Commissioner for Housing Equity, who intervened on Ms. Miller’s behalf. In her request for review, Ms. Miller stated that her request was delayed because of, essentially, misguided advice from the TCHC (who had advised her to declare bankruptcy) and her need to take care of her son. She again requested that her rent be calculated based on her actual income as shown on the Notices of Assessment. Once again, she noted that she was also disputing her rent calculations from 2010 to 2014.
[22] On April 12, 2019, the Review Body upheld its first decision. The letter to Ms. Miller stated that the Review Body had denied her request for a review of the rent decisions issued between 2010 and 2017 and that “no further review will be conducted.” It explained that the request had been denied because “it was beyond the deadline to request a review and did not meet the criteria for exceptional circumstances.”
[23] This decision first referred to the documents that the Review Body had received prior to the first decision and “which did not meet the criteria for an extension of time” and, second, it listed the documents that had been filed in support of the second request. The letter referenced the applicable portions of the TCH RGI Review Process. The letter then stated that Ms. Miller was not requesting a review of the last decision issued—the October 29, 2018 Notice of Decision—but, rather, the subsidy calculation decisions made between 2010 and 2017, and that request was beyond deadline.
[24] On August 12, 2019, the Applicant commenced this application.
[25] On February 6, 2020, Ms. Miller was informed by the TCHC that it had completed an administrative audit of her RGI account between 2010 to 2017 and would apply a credit of $1,884 to her account.
Ms. Miller still takes exception to the recalculation and asserts that the TCHC has repeated the error of calculating her income based upon her letter of employment, rather than her actual income which, because of many days when she missed work due to her son’s illness, was much lower than it would have been had she been able to actually work fulltime.
POSITIONS OF THE PARTIES
[26] The Respondents assert that the application should be dismissed for failure of her request for review and recalculation to meet the deadline for submission, or for delay or by the doctrine of laches, or both.
[27] Ms. Miller submits that the doctrine of laches does not apply to this application as it was made in a timely fashion. She submits that the principle of laches should not be permitted to apply to legal claims made pursuant to statutory authority and finally, the doctrine should not be permitted to operate as it would circumvent the protections created by the statute.
[28] Ms. Miller argues that Review Body fettered its discretion by refusing to review its policy of not reviewing rent calculations more than 12 months after the effective date of the last annual review. She submits that it simply relied upon its general policies without considering the circumstances of her individual situation.
[29] She disputes the Respondents’ interpretation of the Review Body’s guideline that there is a hard 12 month cap for reviews if one fits into the exceptional circumstances category.
[30] The Respondents assert that the only discretion provided by the guideline was to grant or not grant an extension of time to file a request. The written reasons show that it did not abuse or fetter its discretion.
[31] The Respondents also submit that paragraph 2 of the Review Process clearly creates a hard 12 month cap behind which no review may take place.
[32] The Applicant also asserts that the Review Body failed to provide reasons for its decision that Ms. Miller’s request did not meet the criteria for exceptional circumstances.
[33] The Respondents submit that both decisions provided substantive reasons.
DISCUSSION AND ANALYSIS
Court’s Jurisdiction
[34] For this application, the court has jurisdiction pursuant to ss. 2(1) and 6(1) of the Judicial Review Procedure Act.[^3]
Standard of Review
[35] The parties agree that the decisions are to be reviewed on a reasonableness standard.[^4]
Issues
[36] There are four issues raised in this application:
a. Was the Review Body’s interpretation of paragraph 2 of its Review Process unreasonable?
b. Did the Review Body fail to consider the Applicant’s circumstances thereby fettering its discretion?
c. Did the Review Body provide insufficient reasons, thereby making the decision unreasonable?
d. Should this application be dismissed for delay, or by the application of the doctrine of laches, or both?
Interpretation of Paragraph 2 of Review Process
[37] The Review Body interprets paragraph 2 of the Review Process as a provision to create a hard cap that prevents review beyond the last previous review date. Ms. Miller, however, submits that the Exceptional Circumstances provision has no such restriction so that if one fits into the Exceptional Circumstances category, one may seek a RGI review for periods behind the one year cap.
[38] It may well be that the drafters of this provision, (the Service Manager, the City of Toronto) intended a cap as the Respondents submit. That is not, however, how the paragraph is drafted. Recall that the words of a statute or rule are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the document.[^5] A plain reading of that section shows that if one fits into Exceptional Circumstances, then there is no such cap.
[39] Therefore, I find that the Review Body’s finding that even if the Applicant had established Exceptional Circumstances, she was not entitled to a review beyond the last rent determination date is an unreasonable finding.
[40] My determination that the Review Body’s interpretation of the application of Exceptional Circumstances is unreasonable is based upon the plain reading of the paragraph. That finding should not be interpreted as a finding that it would be unreasonable for the relevant body to write rules to govern the process that impose a hard cap of 12 months. In light of the legislative scheme created for subsidized housing that may well be a reasonable approach to reviews. That, however, is not what is before the court today.
Fettering of Discretion/Sufficiency of Reasons
[41] Because of the Review Body’s unreasonable interpretation of paragraph 2 of its Review Process rules, the next two issues can be reviewed together.
[42] In our particular circumstances, it is clear from the Review Body’s decisions of February 15, 2019 and April 12, 2019, that it applied its interpretation of the paragraph 2 of the Review Process without regard to the Applicant’s circumstances. It exercised no discretion because it apparently thought that it had none.
[43] The February 15 2019 decision states: “[t]he deadline (sic) to request a review for the decisions made from 2010 through 2017 are beyond the deadline”. The Review Body then repeats portions of paragraph 2. However, it does not opine on whether the Applicant met the exceptional circumstances criteria.
[44] The April 12, 2019 decision does not improve upon the February 15, 2019 decision. There is no improvement by stating that the February 15, 2019 decision denied the request because it was beyond the deadline “and did not meet the criteria for exceptional circumstances”, since nowhere in the February 15, 2019 decision is it explained why there was not exceptional circumstances.
[45] Further, because the Review Body considered its discretion governed and negated by paragraph 2, it also did not analyze whether the Applicant met the exceptional circumstances criteria. Therefore, the decision contains no reasons or analysis as to why the information that the Applicant submitted did not meet the criteria of exceptional circumstances. Rather the decision retreats to the policy that there will be no review beyond the effective date of the last annual review.
[46] This approach by the Review Body breached its legal duty to provide reasons. As noted above, section 158 of the HAS requires that the review body provide its decision in writing and “shall give reasons in writing”. Also, the RGI Administration Manual acknowledges the Review Body’s obligation to provide a full explanation of the reasons for its decision.
[47] Further, the Supreme Court, in Canada (Minister of Citizenship and Immigration) v. Vavilov,[^6] has made clear that a decision maker has an obligation to explain its reasoning and show that its decisions are justified both upon the facts and the law:
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.
[48] I find that the reasons contained in the two decisions are insufficient, and therefore the decisions are unreasonable and should be set aside.
Laches
[49] The Respondents seek the dismissal of this application on the basis of delay or laches.
[50] The Respondents acknowledge that the period between the two decisions and the commencement of this application in and of itself does not raise a defence on the basis of delay or laches. Rather, it asserts that because the substance of those decisions refers to matters back to 2010, that should be the reason to deny the application.
[51] I decline to exercise discretion to dismiss this application for delay or laches as the application was commenced in a reasonable time in all the circumstances including the circumstances associated with Ms. Miller’s contention that her particular situation is exceptional. The issue of delay may well be a factor for the Review Body to consider when it considers the Applicant’s claim of exception circumstances.
DISPOSITION
[52] I grant the application.
[53] Supplemental written submissions were received by the parties regarding the appropriate remedy. After considering those submissions, I find that the appropriate remedy is as follows:
a. The decisions of the Review Body dated February 15, 2019, and April 12, 2019, are set aside.
b. The request of the Applicant for a review and recalculation of the RGI subsidy from 2010 through 2017 is returned to the Respondents for reconsideration by a different decision maker.
COSTS
[54] The parties agreed that there would be no order as to costs.
D. L. Edwards, J.
I agree _______________________________
Stewart J.
I agree _______________________________
Perell J.
Released: April 4, 2022
CITATION: Susan Miller v. Toronto Community Housing Corporation and Toronto Community Housing Corporation RGI Review Body, 2022 ONSC 2092
DIVISIONAL COURT FILE NO.: 444/19
DATE: 20220404
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Stewart, Perell, D. L. Edwards JJ.
BETWEEN:
SUSAN MILLER
Applicant
– and –
TORONTO COMMUNITY HOUSING CORPORATION and TORONTO COMMUNITY HOUSING CORPORATION RGI REVIEW BODY
RESPONDENTS
REASONS FOR JUDGMENT
D.L EDWARDS, J.
Released: April 4, 2022
[^1]: 2011, S.O. 2011, c.6, Sched. 1. [^2]: R.S.O. 1990, c. S.22. [^3]: R.S.O. 1990, c. J.1. [^4]: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 at para. 37. [^5]: Rizzo & Rizzo Shoes Ltd (Re), [1998] 1 S.C.R. 27 at para 21. [^6]: 2019 SCC 65 at para. 135.