CITATION: Dahlia McPherson v. City of Toronto, RGI Eligibility Review Board 2022 ONSC 2109
DIVISIONAL COURT FILE NO.: 826/21
DATE: 20220419
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
McWatt A.C.J.S.C.J. and Backhouse and P. Sutherland JJ.
BETWEEN:
DAHLIA McPHERSON
Applicant
– and –
CITY OF TORONTO, RGI ELIGIBILITY REVIEW BOARD
Respondent
Joseph Osuji, for the Applicant
Molly Lowson, for the Respondent
– and –
TORONTO COMMUNITY HOUSING
Intervenor
Katie Douglas, for the Intervenor
HEARD at Toronto (by videoconference): March 30, 2022
McWatt A.C.J.S.C.J.
REASONS FOR DECISION
[1] Dahlia McPherson challenges the decision of the respondent, City of Toronto Review Body (“Review Body”), dated September 14, 2021, denying her request for a review of a decision made by the Toronto Community Housing Corporation (“TCH”). The TCH denied Ms. McPherson eligibility for rent-geared-to-income assistance (“RGI”) for failure to provide documents substantiating her income and assets.
[2] Although she appeared initially, Ms. McPherson did not stay for the hearing of this Application and asked for an adjournment through her lawyer. The panel ordered the matter to proceed in any event.
[3] The court has jurisdiction to hear the Application pursuant to ss. 2(1) and 6(1) of the Judicial Review Procedure Act, R.S.O. 1990, c. J.1.
[4] The parties agree that the standard of review in this matter is reasonableness.
[5] The issues before the panel were whether the Review Body met its duty of procedural fairness and whether the Review Body’s decision was reasonable.
[6] The answer to both of those questions is yes. As a result, the Application is dismissed.
BACKGROUND
The Applicant Lost her RGI Subsidy in 2019
[7] Ms. McPherson has resided, since 2004, in a unit in a TCH building managed by Del Management Solutions (“DMS”).
[8] The City of Toronto (the "City") is required, by the Housing Services Act, 2011 S.O. 2011, c. 6, Sched. 1 (“HAS”), to provide RGI to qualifying residents as a means of supporting affordable housing in Toronto. The City has delegated the administration of the RGI program to TCH in its buildings. As part of the qualification process, individuals receiving RGI must participate in annual reviews of their eligibility by providing income and asset information.
[9] On March 7, 2019, the Applicant lost her eligibility for RGI because she failed to provide information required to complete her annual review of income and assets, as required by the HSA, in order to maintain eligibility for the RGI subsidy. The Applicant was provided with a Notice of Decision, which stated that a Request for Review form (“a RFR”) was due by April 13, 2019 or the decision was final. As noted on the Notice of Decision, the effective date for a rent increase was July 1, 2019.
[10] On June 11, 2019, the Applicant was sent a letter from a DMS property administrator reminding her of the upcoming loss of RGI and advising her that her rent would increase to market value on July 1, 2019. The Resident Ledger indicates that up to July 1, 2019, the Applicant was being charged $241 per month for rent and after July 1, 2019 the rent increased to $1,325 per month.
[11] The Applicant was sent further correspondence on March 5, 2020, noting that she had been charged market rent for her unit since July 1, 2019 and advising that her status would be changing from RGI status to market status as of June 20, 2020. The Applicant was sent two further Notices of Decision, dated March 10, 2020 and February 12, 2021, which also referred to her loss of eligibility for RGI.
[12] The City did not receive an RFR form from the Applicant in 2019 or 2020.
[13] Over two years later, on August 20, 2021, the Applicant requested that the City review the TCH's decision to remove her eligibility for RGI.
[14] Affidavit evidence, filed on this Application by the City, indicates that, as of September 30, 2021, there were 70,735 households receiving RGI and 78,791 households on the waiting list to receive RGI.
The Applicant's Request for Review was Denied in 2021
[15] On September 14, 2021, the Applicant's request for review was denied, in writing, at the preliminary stage of her review on the basis that she was well beyond the deadline to make such a request and had not provided an adequate justification for the delay.
[16] On August 22, 2021, the Review Body received a copy of the Applicant's RFR form. A question on the form asked her to explain the reason for its late submission. The Applicant wrote that she did not receive a copy of the Notice of Decision until counsel for TCH notified her lawyer in December 2020. She alleged that DMS never notified her about the loss of eligibility and the April 13, 2019 deadline to request a review of that decision.
[17] As part of its preliminary review, the Review Body looked at overwhelming evidence which showed that the Applicant was made aware of the Notice of Decision after it was issued in March 2019. TCH evidence, unchallenged by Ms. McPherson, showed the following:
• The Applicant was served a first notice of impending loss of eligibility in a letter dated February 7, 2019;
• The Applicant had a meeting with the Property Administrator on March 6, 2019 to remind her of the missing documents and impending loss of eligibility;
• The Notice of Decision was served on March 13, 2019;
• On June 11, 2019, the Applicant was served a final reminder letter for the loss of eligibility taking place on July 1, 2019;
• As well, Ms. Chan, from the City, had contacted Doug Letto, counsel for TCH. Mr. Letto provided correspondence between himself and counsel for the Applicant regarding her loss of RGI. Mr. Letto sent copies of the Notice of Decision to the Applicant's counsel;
• Ms. Chan also emailed counsel for the Applicant attempting to set up a phone call to get further information regarding the delay, but she did not receive a reply to her email.
[18] The Applicant’s request was, therefore, denied because it was well beyond the 30 day deadline and she has never provided an adequate justification for why her request was delayed.
ANALYSIS
Duty of Fairness
[19] The Applicant challenges the procedural fairness of her request for review. Where a question of procedural fairness is raised, a reviewing court must first undertake a contextual analysis of the content of the duty of fairness in the circumstances of the case. This analysis requires a consideration of the factors identified by the Supreme Court of Canada in Baker v. Canada (Minister of Citizenship and Immigration) 1999 699 (SCC), [1999] 2 SCR 817, at para. 22. Second, the court will assess whether the decision-maker met the duty of fairness in light of the analysis performed in the first step (Baker at para 22).
[20] The purpose underlying the Baker factors is to ensure that administrative decisions “are made using a fair and open procedure, appropriate to the decision being made in its statutory, institutional, and social context, with an opportunity for those affected by the decision to put forward their views and evidence fully and have them considered by the decision-maker.” (Baker, at para 22).
[21] Reviews by service managers of loss of eligibility decisions under the HSA are final, which would suggest greater fairness is required. However, the statutory scheme also suggests that the process established by the City, as a service manager, is owed deference.
[22] Pursuant to s. 155 of the HSA, the City is obligated to have a system for dealing with reviews of loss of eligibility decisions, including a process for reviews.
[23] This court must respect the City's choice of procedure for requests for review, particularly where: 1) the City's Review Body has expertise in determining what procedures are appropriate to efficiently process the hundreds of requests for review that it receives each year (MacKenzie v. Ottawa Community Housing Corporation, 2021 ONSC 1640 at para 12); and 2) the legislative scheme specifically requires the City to provide for when a review may be requested (See O. Reg. 367/11, s. 138(1)(i); see also Rogers at paras 17-18, Baker at para 27).
[24] The deadline to request a review strikes a reasonable balance between the need for fairness and efficiency. Housing providers make countless decisions with respect to continued eligibility for RGI in a given year, and the Review Body receives hundreds of requests for review of those decisions. The 30 day deadline allows for the efficient management of requests for review, while the RFR form permits households to provide an explanation if they are past the deadline, thereby allowing them an opportunity to be heard.
[25] City staff made a decision about whether the reasons for late submission of the request for review provided by the Applicant were adequate. The decision was discretionary in nature and attracts deference. City staff provided the Applicant an opportunity to explain the delay, but they did not receive a response from her.
[26] Contrary to the Applicant's assertions in her factum, the City followed the requirements of the review process as set out in the HSA and the Regulations.
[27] The Applicant’s request for review was very late. All that she could expect was an opportunity to provide an explanation for the delay in requesting the review and she did not provide one.
Importance of the Decision to the Applicant
[28] A review of the loss of eligibility decision was presumably important to the Applicant.
[29] Maintaining eligibility for RGI would mean that the Applicant's rent would continue to be significantly lower than the market value. However, the likely importance of the decision to the Applicant was undercut by her significant delay in requesting a review.
[30] The Notice of Decision was issued on March 7, 2019 and the request for review was made on August 20, 2021 - approximately two and a half years later. The Applicant's rent increased significantly on July 1, 2019, still more than two years before the request for review was made. There is ample evidence that she was informed and should have been aware of her loss of eligibility for RGI in 2019. Ms. McPherson admits to knowing about the loss of eligibility in December 2020, eight months prior to the request for review.
[31] By at least November 2020, the Applicant was represented by counsel, who similarly would have been aware of her loss of eligibility.
[32] The duty of fairness owed in this case was at the lower end of the spectrum. The scope of the duty was limited to ensuring that the Applicant knew there was a deadline for submitting a request for review and, if submitted past the deadline, that the Review Body would consider whether there was a reasonable explanation for delay. That duty was met in this case.
Other Issues of Fairness Raised by the Applicant
[33] Contrary to the Applicant's assertion, the Review Body was not obligated to provide an oral hearing of her matter. The Supreme Court of Canada has held that an oral hearing is not always necessary to ensure a fair proceeding and proper consideration of the issues involved in a case. In paragraph 33 of Baker, the Court wrote that "the flexible nature of the duty of fairness recognizes that meaningful participation can occur in different ways in different situations."
[34] In Khan v University of Ottawa, 1997 941 (ON CA), 1997 CarswellOnt 2613 at para 21, the Court of Appeal for Ontario held that "an oral hearing may be required in certain circumstances and particularly where Charter rights are at stake and in those common situations where credibility of the parties and witnesses is a factor in the decision-making process." Those circumstances are not present in this case. An oral hearing was not required.
The Applicant was afforded opportunities to provide written submissions
[35] The Applicant was provided the opportunity to provide written submissions. The RFR form includes a section for households to provide an explanation if submitting their request after the stipulated deadline. In this case, the Applicant provided an explanation, which was that she did not know about the loss of eligibility decision until December 2020, when her lawyer was informed of it by counsel for TCH. She did not provide an explanation, however, for why she then waited another eight months before requesting a review.
The Duty of Fairness was Met
[36] The duty of fairness owed to the Applicant was at the lower end of the spectrum. It was limited to ensuring that the Applicant knew there was a deadline for submitting a request for review and, if submitted past the deadline, that the Review Body would consider whether there was a reasonable explanation for delay. This duty was met.
The Review Body's Decision was Reasonable
[37] When looking at the record as a whole, the decision to deny the Request for Review was reasonable. The Notice of Decision was served and there were numerous letters sent to the Applicant and attempts to communicate with her regarding her loss of eligibility leading up to and after the March 7, 2019 Notice of Decision.
[38] Even if the Applicant did not know about her loss of RGI in March 2019, it is reasonable to conclude that she would have been aware of it months, if not years, before she requested a review in August 2021. The first time would have been from July 1, 2019 when she began to be charged market rent for her unit. The second time would have been from November or December 2020 when she admits that she was made aware of the loss of eligibility by her lawyer.
[39] The Applicant does not dispute the key facts regarding the timeline and has never provided a satisfactory explanation for why she took so long to request a review.
[40] Given the extraordinarily high number of people waiting to receive RGI, late submission cannot be excused without ensuring there are extenuating circumstances or adequate reasons for the delay.
[41] As a result, it was reasonable for City staff to conclude that the Applicant had not provided a sufficient explanation for the lengthy delay and to deny her request for review on that basis.
[42] The decision to deny the request for review was reasonable and should be upheld.
COSTS
[43] The parties have agreed not to pursue costs against each other. Therefore, no costs are ordered.
McWatt A.C.J.S.C.J.
I agree _______________________________
Backhouse J.
I agree _______________________________
P. Sutherland J.
Released: April 19, 2022
CITATION: Dahlia McPherson v. City of Toronto, RGI Eligibility Review Board 2022 ONSC 2109
DIVISIONAL COURT FILE NO.: 826/21
DATE: 20220419
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
McWatt A.C.J.S.C.J. and Backhouse and P. Sutherland JJ
BETWEEN:
DAHLIA McPHERSON
Applicant
– and –
CITY OF TORONTO, RGI ELIGIBILITY REVIEW BOARD
Respondent
– and –
TORONTO COMMUNITY HOUSING
Intervenor
REASONS FOR Decision
Released: April 19, 2022