Supreme Court of Canada

Appeal Heard: April 25, 2018 Judgement Rendered: January 25, 2019 Docket: 37551

Between:

S.A. Appellant

and

Metro Vancouver Housing Corporation Respondent

— and —

Attorney General of British Columbia, Canadian Association for Community Living, People First of Canada, Council of Canadians with Disabilities, Income Security Advocacy Centre, HIV & AIDS Legal Clinic Ontario and Disability Alliance BC Society Interveners

Coram: Wagner C.J. and Abella, Moldaver, Karakatsanis, Gascon, Côté, Brown, Rowe and Martin JJ.

Reasons for Judgment: (paras. 1 to 74) Côté J. (Wagner C.J. and Abella, Moldaver, Karakatsanis, Gascon and Martin JJ. concurring)

Reasons Dissenting in Part: (paras. 75 to 94) Rowe J. (Brown J. concurring)

S.A. v. Metro Vancouver Housing Corp., 2019 SCC 4, [2019] 1 S.C.R. 99

Parties

S.A. Appellant

v.

Metro Vancouver Housing Corporation Respondent

and

Attorney General of British Columbia, Canadian Association for Community Living, People First of Canada, Council of Canadians with Disabilities, Income Security Advocacy Centre, HIV & AIDS Legal Clinic Ontario and Disability Alliance BC Society Interveners

Indexed as: S. A. v. Metro Vancouver Housing Corp.

2019 SCC 4

File No.: 37551.

2018: April 25; 2019: January 25.

Present: Wagner C.J. and Abella, Moldaver, Karakatsanis, Gascon, Côté, Brown, Rowe and Martin JJ.

Headnotes

on appeal from the court of appeal for british columbia

Social law — Affordable housing — Rental assistance program — Application for means-tested rent subsidy — Disclosure of assets — Henson trust — Landlord offering discretionary rental assistance to tenants who have less than $25,000 in assets — Tenant refusing to disclose balance of Henson trust established for her care and maintenance in application for rental assistance — Whether trust should be treated as tenant's asset for purpose of determining eligibility for rental assistance.

Contracts — Tenancy agreement — Rental assistance program — Landlord offering discretionary rental assistance to tenants — Whether landlord has contractual obligation to consider complete application for rent subsidy by tenant — Whether tenant's application was complete when it did not include value of her Henson trust — If so, whether landlord breached contractual obligation — Appropriate remedy — Availability of declaratory relief.

The respondent, Metro Vancouver Housing Corporation ("MVHC"), is a non-profit corporation that operates subsidized housing complexes. It also offers means-tested rental assistance in the form of rent subsidies to eligible tenants on a discretionary basis. Tenants wishing to receive rent subsidies must demonstrate, on an annual basis, that they meet the eligibility criteria by completing and submitting an assistance application. MVHC limits eligibility for rental assistance to tenants who have less than $25,000 in assets.

The appellant, A, a person with disabilities, has resided in one of MVHC's housing complexes since 1992 and received rental assistance from MVHC every year until 2015. The terms of her tenancy were set out in a tenancy agreement, which required that she provide an income verification statement to MVHC once a year.

A also has an interest in a trust that was settled for her benefit in 2012. The terms of the trust provide that the two co-trustees — A and her sister — together have the discretion to pay so much of the income and capital as they decide is necessary or advisable for the care, maintenance, education, or benefit of A. The structure of this kind of trust, commonly known as a Henson trust, means that A cannot compel the trustees to make any payments to her and that she cannot unilaterally collapse the trust. In 2015, MVHC requested that A disclose the balance of the trust. A refused, taking the position that her interest in the trust was not an "asset" that could affect her eligibility for rental assistance. MVHC advised her that it was unable to approve her application, as in its view, her trust was an asset and its value was required for it to determine her eligibility for rental assistance.

Both A and MVHC filed petitions in the Supreme Court of British Columbia, seeking a determination as to whether A's interest in the trust is an asset for the purpose of considering her application for rental assistance. The chambers judge held that the meaning of the word "assets" as used in the tenancy agreement was broad enough to encompass A's interest in the trust, and therefore that MVHC was entitled to require that A disclose the value of the trust before it would consider her application for rental assistance. The Court of Appeal dismissed A's appeal.

Held (Brown and Rowe JJ. dissenting in part): The appeal should be allowed.

Per Wagner C.J. and Abella, Moldaver, Karakatsanis, Gascon, Côté, and Martin JJ.: As A has no actual entitlement to the trust property under the terms of the trust, her interest in the trust is not an asset that could disqualify her from being considered by MVHC for a rent subsidy. Accordingly, A was eligible to be considered by MVHC for rental assistance in 2015.

The interpretation of the word "asset" as it is used in the assistance application is a justiciable issue that falls within the jurisdiction of this Court. Although A does not have a contractual entitlement to a rent subsidy even if she satisfies the eligibility criteria for rental assistance, the dispute between the parties is fundamentally contractual in nature. It turns on whether MVHC had a contractual obligation to consider any complete assistance application received from A, and, if so, whether the assistance application that A submitted for the year 2015 was in fact complete so as to trigger MVHC's obligation.

The tenancy agreement imposes an obligation on MVHC to consider a complete application for rental assistance submitted by A. Individual tenants of MVHC properties have no contractual entitlement to receive rental assistance and the amount, if any, that eligible tenants might be granted is determined by MVHC on a discretionary basis. However, the tenancy agreement imposes on MVHC an obligation to consider whether a tenant's rent will be adjusted in accordance with the terms of and information provided on the assistance application. The existence of this obligation is rooted in cl. 5(a) of the tenancy agreement and in the tenancy agreement's definition of the term "unit rent". Both provisions provide that rent to be paid includes a possible decrease in rent determined in accordance with the terms of a "rental assistance agreement". Since the expression "rental assistance agreement" is not defined in the tenancy agreement, it is necessary to look at the factual matrix surrounding the formation of that contract. It is clear from the factual matrix that MVHC decides whether an applicant will be accorded a rent subsidy, that is, whether it will enter into a rental assistance agreement with a tenant, on the basis of the information provided on the assistance application. Upon entering into the tenancy agreement, the parties must therefore have understood that MVHC would determine whether to provide rental assistance to A in accordance with the terms of and information provided on the assistance application if A chose to submit one.

A's interest in the trust does not form part of her assets for the purpose of determining her eligibility to be considered for a rent subsidy from MVHC. First, the trust has the essential features of a Henson trust: the trustee is given ultimate discretion with respect to payments out of the trust to the person with disabilities for whom the trust was settled, the effect being that this person cannot compel the trustee to make payments to him or her, and is prevented from unilaterally collapsing the trust. As a result, A has no enforceable right to receive any of the trust's income or capital. Her interest in the trust is akin to a mere hope that some or all of its property will be distributed to her at some point in the future. Trust arrangements such as these cannot be treated as actually enriching the person with disabilities for whom they were settled, because they are structured in a way that puts the trust property beyond that person's control.

Second, the word "assets" must be given its ordinary and grammatical meaning in light of the specific context in which it was used. A reasonable person who interprets the assistance application objectively would understand the word "assets" to mean an applicant's property or interests in property that can actually be used to discharge his or her debts and liabilities, including monthly rent. This meaning aligns with the overall purpose of the rental assistance program, which is to provide rent subsidies to tenants who are in significant financial need.

The word "assets" as it is used in the assistance application is therefore not broad enough to encompass A's interest in the trust, because this interest on its own is not something that A can use to pay her rent or to discharge her other debts or liabilities. Her financial circumstances are only ameliorated if and when the trustees actually decide to make distributions to her. For this reason, the value of the trust is not pertinent to the determination of A's eligibility to receive rental assistance and there was thus no basis for MVHC to require that A provide information regarding the value of her trust before considering her assistance application. MVHC therefore breached its obligation to determine whether A would receive a rent subsidy in accordance with the terms of the assistance application.

All of the criteria for issuing declaratory relief are met in this case. The interpretation of the word "asset" is a justiciable issue that is real, and one in which both parties clearly have a genuine interest. Moreover, a declaration would have practical utility, as it would settle the live controversy between the parties. Accordingly, it is declared that A has a right to have her application for a rent subsidy considered by MVHC in accordance with the terms of the assistance application, and that her interest in the trust is not an "asset" for the purpose of such a determination. A may also be entitled to a monetary remedy for MVHC's failure to consider her application. However, there is insufficient evidence in the record before the Court make a determination as to the amount of such a remedy. This issue should be remitted for determination by the court of original jurisdiction for it to analyze the evidence and grant an award of damages that would put A in the position that she would have been in had MVHC not breached its obligation. The declarations made by the Court of Appeal are set aside.

Per Brown and Rowe JJ. (dissenting in part): The appeal should be allowed in part and the declaratory relief granted to MVHC by the Court of Appeal should be set aside. While there is agreement with the majority's analysis with respect to Henson trusts, there is disagreement with the analysis relating to MVHC's rental assistance program. There is no legal basis on which a court can make an order as to the operation of this discretionary program, as there is no contractual obligation requiring MVHC to consider any rental assistance application nor is MVHC bound to a particular framework for the determination of who is to receive rental assistance.

The availability of declaratory relief is premised on the actual or potential infringement of an applicant's rights. Absent a legal entitlement to anchor a declaration, one cannot be granted. In this case, A has no contractual entitlement to rental assistance under the tenancy agreement. The assistance application is a document designed to assist MVHC in running its discretionary program, and simply provides a means for MVHC to determine which applicants meet the asset cut-off it has established. The choice of who receives assistance from among individuals who satisfy the basic eligibility requirements is MVHC's to make. MVHC's discretion is not limited to consideration of the information provided in the assistance application or by the manner it distributed assistance in the past.

Furthermore, MVHC has no contractual obligation to consider A's assistance application. Clause 5(a) of the tenancy agreement and the definition of the term "unit rent" contemplate the possibility of a tenant receiving additional rental assistance, but those provisions do not impose on MVHC an obligation to consider whether a tenant should receive rental assistance. That a decrease in rent may occur does not mean that MVHC has an obligation to consider whether for any tenant it will occur. For tenants who have merely applied for rental assistance, there is no rental assistance agreement, and therefore no contract, until it has been determined that they will in fact receive rental assistance.

As the decision by MVHC of whether to provide rental assistance is not justiciable, then neither A nor MVHC can receive declaratory relief concerning that decision. Just as A does not have a right for her application to be considered, MVHC does not have a right to compel A to apply for rental assistance, nor a right to receive any information from A that will help it determine whether she should receive any assistance.

Cases Cited

By Côté J.

Applied: Ontario (Director of Income Maintenance Branch of the Ministry of Community and Social Services) v. Henson (1987), 26 O.A.C. 332, aff'd (1989), 36 E.T.R. 192; referred to: Saunders v. Vautier (1841), Cr. & Ph. 240, 41 E.R. 482; Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53, [2014] 2 S.C.R. 633; Eli Lilly & Co. v. Novopharm Ltd., [1998] 2 S.C.R. 129; Buschau v. Rogers Communications Inc., 2006 SCC 28, [2006] 1 S.C.R. 973; Stoor v. Stoor Estate, 2014 ONSC 5684, 5 E.T.R. (4th) 207; Ledcor Construction Ltd. v. Northbridge Indemnity Insurance Co., 2016 SCC 37, [2016] 2 S.C.R. 23; Ewert v. Canada, 2018 SCC 30, [2018] 2 S.C.R. 165; Daniels v. Canada (Indian Affairs and Northern Development), 2016 SCC 12, [2016] 1 S.C.R. 99; Canada (Prime Minister) v. Khadr, 2010 SCC 3, [2010] 1 S.C.R. 44; Operation Dismantle Inc. v. The Queen, [1985] 1 S.C.R. 441; Solosky v. The Queen, [1980] 1 S.C.R. 821; Carter v. Canada (Attorney General), 2015 SCC 5, [2015] 1 S.C.R. 331.

By Rowe J. (dissenting in part)

Kaiser Resources Ltd. v. Western Canada Beverage Corp. (1992), 71 B.C.L.R. (2d) 236.

Statutes and Regulations Cited

Employment and Assistance for Persons with Disabilities Act, S.B.C. 2002, c. 41.

Family Benefits Act, R.S.O. 1980, c. 151, s. 1(1)(a) [rep. & sub. 654/82, s. 1(a)].

R.R.O. 1980, Reg. 318 [made under the Family Benefits Act, R.S.O. 1980, c. 151], s. 3(2)(a).

Supreme Court Civil Rules, B.C. Reg. 168/2009, r. 2‑1(2)(c).

Wills Variation Act, R.S.B.C. 1996, c. 490.

Authors Cited

Black's Law Dictionary, 6th ed., by Henry Campbell Black. St‑Paul, Minn.: West Publishing Co., 1990.

Hall, Geoff R. Canadian Contractual Interpretation Law, 3rd ed. Toronto: LexisNexis, 2016.

Merriam‑Webster (online: https://merriam-webster.com)"asset".

Oosterhoff, Albert H., Robert Chambers and Mitchell McInnes. Oosterhoff on Trusts: Text, Commentary and Materials, 8th ed. Toronto: Carswell, 2014.

Oxford English Dictionary (online: http://www.oed.com)"asset".

Sarna, Lazar. The Law of Declaratory Judgments, 4th ed. Toronto: Thomson Reuters, 2016.

Waters' Law of Trusts in Canada, 4th ed., by Donovan W. M. Waters, Mark R. Gillen and Lionel D. Smith. Toronto: Carswell, 2012.

APPEAL from a judgment of the British Columbia Court of Appeal (Smith, Bennett and Goepel JJ.A.), 2017 BCCA 2, 410 D.L.R. (4th) 198, [2017] B.C.J. No. 70 (QL), 2017 CarswellBC 87 (WL Can.), amending a decision of Steeves J., 2015 BCSC 2260. Appeal allowed, Brown and Rowe JJ. dissenting in part.

Michael A. Feder, Patrick D. H. Williams and Connor Bildfell, for the appellant.

Eileen E. Vanderburgh and Pauline Storey, for the respondent.

Kate Hamm and Graham J. Underwood, for the intervener Attorney General of British Columbia.

Brendon Pooran and Jennifer Macko, for the interveners Canadian Association for Community Living and People First of Canada.

Dianne Wintermute and Luke Reid, for the intervener Council of Canadians with Disabilities.

Ewa Krajewska, Amy Wah and Jackie Esmonde, for the interveners Income Security Advocacy Centre and HIV & AIDS Legal Clinic Ontario.

Geoffrey W. White, Amy A. Mortimore and David P. Taylor, for the intervener Disability Alliance BC Society.

Reasons for Judgment

The judgment of Wagner C.J. and Abella, Moldaver, Karakatsanis, Gascon, Côté and Martin JJ. was delivered by

Côté J. —

I. Introduction

[ 1 ] At issue in this appeal is whether the interest that the appellant, S.A., has in a trust that was set up for her care and maintenance should be treated as an "asset", which would negatively affect her eligibility to participate in a rental subsidy program offered by her landlord, the respondent, Metro Vancouver Housing Corporation ("MVHC").

[ 2 ] Resolving this issue requires this Court to consider, for the first time, the nature of a specific type of trust — commonly known as the "Henson trust" — settled for the benefit of a person with disabilities who relies on publicly funded social assistance benefits (see: Ontario (Director of Income Maintenance Branch of the Ministry of Community and Social Services) v. Henson (1987), 26 O.A.C. 332 (Div. Ct.), aff'd in (1989), 36 E.T.R. 192 (Ont. C.A.)). The central feature of the Henson trust is that the trustee is given ultimate discretion with respect to payments out of the trust to the person with disabilities for whom the trust was settled, the effect being that the latter (a) cannot compel the former to make payments to him or her, and (b) is prevented from unilaterally collapsing the trust under the rule in Saunders v. Vautier (1841), Cr. & Ph. 240, 41 E.R. 482. Because the person with disabilities has no enforceable right to receive any property from the trustee of a Henson trust unless and until the trustee exercises his or her discretion in that person's favour, the interest he or she has therein is not generally treated as an "asset" for the purposes of means-tested social assistance programs (D. W. M. Waters, M. R. Gillen and L. D. Smith, eds., Waters' Law of Trusts in Canada (4th ed. 2012), at pp. 572-73). The Henson trust therefore makes it possible to set aside money or other valuable property for the benefit of a person with disabilities in a manner that jeopardizes that person's entitlement to receive social benefits as little as possible.

[ 3 ] S.A. is a person with disabilities for whose benefit a Henson trust was settled in 2012 ("Trust"). She resides in a housing complex operated by MVHC. In addition to providing affordable housing in the Greater Vancouver area, MVHC offers rental assistance in the form of rent subsidies to certain eligible tenants on a discretionary basis. An "eligible tenant" is one who, among other things, has less than $25,000 in assets. At issue in this case is whether S.A.'s interest in the Trust should be treated as an "asset" for the purpose of determining whether she is eligible to be considered by MVHC for a rent subsidy. Both of the courts below answered this question in the affirmative. S.A. appeals to this Court.

[ 4 ] I would allow the appeal. In my view, S.A. has no actual entitlement to the trust property under the terms of the Trust. Although she is a co-trustee, she has no independent, concrete right to compel any payments to be made to her or for her benefit, and cannot unilaterally terminate the Trust. Her interest in the trust property therefore amounts to a "mere hope" that the trustees will exercise their discretion in a manner favourable to her (Waters, Gillen and Smith, at p. 1204, note 155). For this reason, I conclude that her interest in the Trust is not an asset that could disqualify her from being considered by MVHC for a rent subsidy.

II. Facts

[ 5 ] S.A. is a middle-aged person with disabilities. Because her disabilities prevent her from working, she derives her income from benefits paid to her under the Employment and Assistance for Persons with Disabilities Act, S.B.C. 2002, c. 41 ("EAPDA").

[ 6 ] MVHC is a non-profit corporation that is wholly owned by the Metro Vancouver Regional District. Its mandate is to provide affordable housing in the Greater Vancouver area. To this end, it operates a number of subsidized housing complexes.

[ 7 ] S.A. resides in one such complex ("Housing Complex"). MVHC's operation of the Housing Complex is governed by two agreements with the British Columbia Housing Management Commission: an agreement on Assistance to Non-Profit Corporations ("Operating Agreement"), which was entered into in 1982 (R.R., at pp. 8-14), and an Umbrella Agreement, which was entered into in 2013 (R.R., at pp. 21-25). These agreements impose several obligations on MVHC in managing certain properties in its portfolio. In particular, the Operating Agreement provides that persons wishing to enter into tenancy agreements with MVHC must first demonstrate that they meet certain eligibility requirements pertaining to income, number of occupants, health, and other similar criteria. Both the Operating Agreement and the Umbrella Agreement require that MVHC verify the income of tenants at the time of their initial occupancy, and annually thereafter.

[ 8 ] The Umbrella Agreement also requires that MVHC provide rent subsidies to at least 15 percent of the tenants of the Housing Complex. In order to satisfy this obligation, MVHC offers rental assistance on a discretionary basis to tenants who meet a separate set of eligibility criteria ("Rental Assistance Program"). Tenants wishing to receive rent subsidies must demonstrate, on an annual basis, that they meet these criteria by completing and submitting an application form entitled "Additional Rent Assistance Application" ("Assistance Application"). Given MVHC's financial limitations, however, not all eligible applicants will actually be granted rental assistance. In other words, MVHC tenants do not have a universal entitlement to rent subsidies. The amount, if anything, that may be granted to an eligible tenant is determined by MVHC on the basis of such factors as financial considerations and public housing needs.

[ 9 ] In order to "ensure that limited rental assistance funding is preserved for those who need it most", MVHC has decided to limit eligibility for rental assistance to applicants who, among other things, have less than $25,000 in assets (A.R., at p. 105). A document entitled "Asset Ceiling Policy" includes the following non-exhaustive definition of the word "assets":

Assets include, but are not limited to:

• Stocks, bonds, term deposits, mutual funds, bank deposits and cash
• Real estate equity, net of debt
• Assets in which you have a beneficial interest
• Business equity in a private incorporated company including cash, GICs, bonds, stocks, real estate equity, or equity in any other tangible asset
• Significant personal assets such as collector or luxury vehicles.

Assets that may be excluded include:

• Personal [e]ffects such as a household vehicle, jewelry and furniture
• Bursaries or scholarships from educational institutions for any household member that is a current student
• Registered Education Savings Plans (RESPs), and Registered Retirement Savings Plans (excluded to preserve the intent of these investments)
• Trade and business tools essential to continue currently active employment, such as equipment, tools and business use vehicles
• Assets derived from compensatory packages from government, for example, Indian Residential Schools Settlements and Japanese Canadian Redress.

(A.R., at pp. 105-6)

[ 10 ] The Assistance Application requires that applicants disclose whether they have assets in excess of $25,000, although the definition of "assets" from the Asset Ceiling Policy is not incorporated into the form. The Assistance Application indicates that complete applications will be processed within one week to thirty days, but makes clear that incomplete applications will not be considered at all. Applicants must also agree to provide MVHC with any materials that may be requested to support the information provided on the form.

[ 11 ] S.A. has resided at the Housing Complex since 1992. The terms of her tenancy at all material times were set out in a tenancy agreement dated January 5, 2015 ("Tenancy Agreement"). The Tenancy Agreement required that S.A. provide an income verification statement to MVHC once a year, or at any time if there was a change in her annual income or in the composition of her household (cl. 8(a)). She has complied with this obligation every year since her tenancy began.

[ 12 ] After S.A. began residing at the Housing Complex in 1992, she received rental assistance from MVHC every year until 2015 (A.R., at pp. 68 and 77). The last time rental assistance was accorded was on May 24, 2014, when MVHC granted her $629 in monthly subsidies, thereby reducing her rent from $894 to just $265 per month (A.R., at p. 92). As I will explain below, however, MVHC has not provided her with rental assistance since June 2015.

[ 13 ] After S.A.'s father passed away, the terms of his will — to the effect that S.A. was to inherit one third of the residue of his estate — were varied by a court order in 2012 pursuant to the Wills Variation Act, R.S.B.C. 1996, c. 490. The court order directed that S.A.'s share of her father's estate be placed in a trust for her care and maintenance.

[ 14 ] The terms of the Trust (which are reproduced as an appendix to these reasons) provide that the two co-trustees — S.A. and her sister ("Trustees") — have the discretion to pay so much of the income and capital as they "decide is necessary or advisable for the care, maintenance, education, or benefit of [S.A.]" (art. 1(a)(iv)(A)). Should anything remain in the Trust upon S.A.'s death, that remainder is to pass to the person(s) designated by S.A. in her will or, if she failed to make such a designation, to those who would have inherited S.A.'s estate if she had died intestate. However, S.A. cannot appoint either herself or any of her creditors as a remainder beneficiary. The terms of the Trust also confer on S.A. the power to appoint someone to replace her sister as co‑trustee, should her sister be unwilling or unable to act in that capacity (art. 1(a)(ii)).

[ 15 ] In a letter dated February 13, 2015, MVHC requested that S.A. disclose the current balance of the trust fund, together with details of all disbursements that had been made since it was established. This request was made as part of MVHC's 2014 annual income review. S.A.'s reply, in a letter dated March 11, 2015, reads as follows:

In your letter dated February 13, 2015 (attached), you requested information about the current balance of the [Trust]. As Metro Vancouver Housing Corporation (MVHC) is aware, this is not an asset which could affect my eligibility for a housing subsidy. I am not aware of any rationale for MVHC requiring this information from the trustees. I can confirm that no disbursements have been made to me from the [Trust] since it was established. This information has previously been provided to Ms. Lynn LeNobel, counsel for the MVHC.

(R.R., at p. 1)

[ 16 ] S.A. submitted her Assistance Application for 2015 along with that letter. In response to the question of whether she had assets in excess of $25,000, she ticked the box labelled "No", and wrote: "None that affects my eligibility. Please see my letter to you dated March 11, 2015 & previous correspondence from my legal representatives" (A.R., at p. 108).

[ 17 ] In a letter dated April 13, 2015, MVHC advised S.A. that it was unable to approve her application because she had failed to provide specific information regarding her eligibility under the Rental Assistance Program. The relevant portion of that letter reads as follows:

Pursuant to MVHC's Asset Ceiling Policy, assets include "assets in which you have a beneficial interest". Your discretionary trust is an asset in which you have a beneficial interest and is not one of the types of assets listed in the policy as excluded for the purposes of the asset limit. As MVHC has previously advised, further information regarding the trust, including the value of the trust, is required in order for MVHC to make a determination as to whether the asset should nevertheless be excluded in determining your eligibility for Additional Rent Assistance from MVHC.

MVHC has allowed an exceptionally long period of time for you to provide this information, both to respect the grieving period following the loss of your father and to enable you to seek advice from advocates and advisors regarding the Additional Rent Assistance program requirements. Indeed, your 2014 Additional Rent Assistance Application review remains open and outstanding; although MVHC has nevertheless continued to provide Additional Rent Assistance on the understanding that the requisite information would ultimately be provided. As we understand that information on the value of the trust will not be provided, MVHC is unable to approve your current application for Additional Rent Assistance. [Emphasis added.]

(A.R., at p. 98)

[ 18 ] S.A. ceased receiving rental assistance as of June 1, 2015, and since then she has been paying her full rent under protest. Her payments in June and July 2015 were assisted by a "crisis supplement" granted to her under the EAPDA. Counsel for S.A. advised this Court that payments from the Trust have helped S.A. in covering all other rent shortfalls (transcript, at pp. 23-24).

III. Judicial History

A. The Petitions

[ 19 ] In July 2015, S.A. commenced proceedings against MVHC under rule 2‑1(2)(c) of the Supreme Court Civil Rules, B.C. Reg. 168/2009, which provides that a petition may be filed where "the sole or principal question at issue is alleged to be one of construction of . . . [an] oral or written contract or other document". The core of S.A.'s case, as laid out in her amended petition, was that her interest in the Trust is not an "asset" within the meaning of that word as it is used in either the Tenancy Agreement or any agreement created by the completion of the Assistance Application — the implication being that MVHC had no right to demand that she provide information regarding the value of the Trust or to refuse to consider her 2015 Assistance Application when that information was not forthcoming (A.R., at p. 70). By way of remedy, S.A. sought, among other things, declaratory relief and an order directing MVHC to refund S.A. "the difference between the market rent of $894 per month [that was] paid by [S.A.] or on [her behalf] for the months of June and July 2015 and the subsidized rent of $265 for those months" (A.R., at p. 67).

[ 20 ] MVHC filed a petition of its own in August 2015, also under rule 2-1(2)(c) of the Supreme Court Civil Rules, in which it sought a declaration to the effect that the Rental Assistance Program "requires [the] disclosure of the value of assets in which the applicant for rent assistance has a beneficial interest, including any type of discretionary or non-discretionary trust" (A.R., at p. 48). It also sought an order that S.A. disclose the value of the Trust if she wished to be considered by MVHC for rental assistance.

B. Supreme Court of British Columbia (2015 BCSC 2260)

[ 21 ] The two petitions were heard together on October 9, 2015. Steeves J. ("Chambers Judge") dismissed S.A.'s petition and denied the order that she sought therein. He allowed MVHC's petition and ordered that S.A. was required to disclose the value of the Trust if she wished to qualify for rental assistance.

[ 22 ] The Chambers Judge was of the view that the issue in this case turned on the interpretation of the word "assets" as used in the Tenancy Agreement. After determining that the Asset Ceiling Policy did not form part of the Tenancy Agreement, he went on to hold that the meaning of the disputed word was broad enough to encompass S.A.'s interest in the Trust. On this basis, the Chambers Judge concluded that MVHC was entitled to require that S.A. disclose the value of the Trust before it would consider her application for rental assistance.

C. British Columbia Court of Appeal (2017 BCCA 2, 410 D.L.R. (4th) 198)

[ 23 ] The British Columbia Court of Appeal dismissed S.A.'s appeal. In the view of Goepel J.A., writing for a unanimous panel, the fundamental issue in the appeal was whether MVHC could require S.A. to provide additional details regarding the Trust's value to determine whether she was eligible for rental assistance and, if so, how much (if anything) she should receive. He also took the position that the Chambers Judge had erred in analyzing this issue through the lens of the Tenancy Agreement, observing that the issue instead turned on the interpretation of the word "assets" as used in the Assistance Application. In light of the definition of "assets" in the Asset Ceiling Policy, Goepel J.A. held that the Trust should be characterized as S.A.'s asset. On that basis, he concluded that "MVHC is entitled, pursuant to the provisions of the Assistance Application, to the further information it requested concerning the Trust to assist it in determining whether to provide rental assistance" (para. 56).

IV. Analysis

A. Does This Appeal Raise a Justiciable Issue?

[ 24 ] The main issue in this appeal is the characterization of S.A.'s interest in the Trust, and specifically whether MVHC can treat that interest as her "asset" for the purpose of determining whether she meets the eligibility criteria for the Rental Assistance Program. S.A. submits that it cannot do so, and on that basis takes the position that MVHC had no right to demand that she provide further information as to the value of the Trust, or to refuse to consider her 2015 Assistance Application when she did not provide the requested information. MVHC submits that the Asset Ceiling Policy defines the term "assets" as including assets in which an applicant for rental assistance has a beneficial interest. It therefore says that S.A.'s interest in the Trust is indeed an asset and that the value of the Trust therefore ought to have been disclosed on her 2015 Assistance Application. Because S.A. did not provide that information either on the form or upon MVHC's subsequent request, MVHC contends that S.A.'s 2015 Assistance Application form was not in fact complete, and that it thus had no obligation to consider her request for rental assistance.

[ 25 ] As a preliminary matter, however, MVHC submits that S.A. has not identified a legal basis that would justify awarding her either the declaration or the monetary order that she seeks. Put simply, its position is that S.A. has not demonstrated that she has either a contractual entitlement to receive rental assistance or a right to seek judicial review of MVHC's decisions respecting the administration of the Rental Assistance Program.

[ 26 ] This case was not brought as an application for judicial review (A.R., at p. 47; transcript, at pp. 13-14), and I agree that S.A. does not have a contractual entitlement to a rent subsidy even if she satisfies the eligibility criteria for the Rental Assistance Program. That being said, I am nevertheless of the view that the dispute between the parties is fundamentally contractual in nature, as it turns on (a) whether MVHC had a contractual obligation to consider any complete Assistance Application received from S.A. in accordance with the terms of that application, and (b) whether the Assistance Application that S.A. submitted for the year 2015 was in fact complete and in compliance with the applicable terms, so as to trigger MVHC's obligation. I will address both of these issues, in turn, below.

B. Does MVHC Have an Obligation to Consider a Complete Application for Rental Assistance Submitted by S.A.?

[ 27 ] On this first issue, I am of the view that the Tenancy Agreement imposes an obligation on MVHC to determine whether an adjustment will be made to S.A.'s base rent in accordance with her current income and the terms of a rental assistance agreement. The existence of this obligation is rooted in cl. 5(a) of the Tenancy Agreement, which requires that S.A. pay MVHC a pre-set amount in monthly rent. That clause reads as follows:

5. Rent and Security Deposit

(a) The Tenant agrees to pay rent calculated as follows:

(i) Unit Rent in the amount of $894.00;

(ii) less the decrease in rent determined in accordance with the Tenant's current income and the terms of a Rental Assistance agreement, being at the time of this Tenancy Agreement the amount of $629.00;

(iii) plus Adjustments for a parking fee of $0. [Emphasis added.]

(A.R., at p. 80)

The Tenancy Agreement defines the term "Unit Rent" as "the monthly rent for the Rental Unit before any increase or decrease in rent determined in accordance with the Tenant's income and the terms of a Rental Assistance [A]greement" (cl. 2(a)(xii) (A.R., at p. 80)).

[ 28 ] Taken together, these provisions indicate that MVHC has a contractual obligation to determine whether an adjustment will be made to S.A.'s monthly base rent. This is consistent with the Umbrella Agreement, which requires that MVHC provide rent subsidies to a minimum of 15 percent of the tenants residing at the Housing Complex (R.R., at pp. 23-24).

[ 29 ] It is equally significant that whether S.A. will get a rent decrease, under cl. 5(a)(ii) of the Tenancy Agreement, is to be determined by MVHC "in accordance with [her] current income and the terms of a Rental Assistance [A]greement" (emphasis added) (A.R., at p. 80). The expression "Rental Assistance [A]greement" is not defined in the Tenancy Agreement, although cl. 2(a)(vi) defines "Rental Assistance" as "a rent supplement provided by or through [MVHC] to a Tenant who meets eligibility criteria related to income, the number of occupants, or other criteria" (A.R., at p. 79).

[ 30 ] In order to appreciate what was meant by "the terms of a Rental Assistance Agreement", it is therefore necessary to look beyond the four corners of the Tenancy Agreement, and at the factual matrix surrounding the formation of that contract. It is necessary to identify facts that were (or reasonably ought to have been) known to both parties at the time of contracting, and that would assist the Court in giving the Tenancy Agreement a sensible interpretation: Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53, [2014] 2 S.C.R. 633, at paras. 47-48.

[ 31 ] Since 1992, S.A. has successfully applied year after year for tenancy at the Housing Complex. In addition to her tenancy application, S.A. has applied for rental assistance each year by filling out an Assistance Application. The Assistance Application, which was in the same form in 2015 as it had been in previous years, reads as follows at the beginning of the form:

Please complete this form if you are already an MVHC Tenant or Occupant and you wish to apply for additional rent assistance.

INCOMPLETE APPLICATIONS WILL BE RETURNED TO THE APPLICANT UNPROCESSED.

Please note that it can take from one week to thirty days to process a form and that MVHC will not process incomplete forms.

(A.R., p. 107)

[ 32 ] There is also a section at the end of the Assistance Application in which an MVHC staff member is to indicate the amount, if any, of rental assistance for which the tenant qualifies. It is clear from this that MVHC decides whether an applicant will be accorded a rent subsidy, that is, whether it will enter into a rental assistance agreement with a tenant, on the basis of the information provided on the Assistance Application. Upon entering into the Tenancy Agreement, the parties must therefore have understood that MVHC would determine whether to provide rental assistance to S.A. in accordance with the terms of and information provided on the Assistance Application if S.A. chose to submit one.

[ 33 ] It is common ground that individual tenants of MVHC properties do not have a contractual entitlement to receive rental assistance and that the amount, if any, that eligible tenants might be granted is determined by MVHC on a discretionary basis. With respect, however, this is in my view beside the point. The relevant obligation — the one that flows from cl. 5(a) of the Tenancy Agreement — is MVHC's obligation to consider whether a tenant's rent will be adjusted in accordance with the terms of and information provided on the Assistance Application; it is not an obligation to actually grant rental assistance to any given tenant. I therefore proceed on the basis that MVHC had an obligation to consider S.A.'s Assistance Application once she submitted it.

C. Does S.A.'s Interest in the Trust Form Part of Her "Assets" for the Purpose of Determining Her Eligibility to Be Considered for a Rent Subsidy From MVHC?

[ 34 ] As I stated above, the central issue in this appeal is whether S.A.'s interest in the Trust is an "asset" that can negatively affect her eligibility to be considered by MVHC for rental assistance. I will address this issue in three parts: (1) the nature of S.A.'s interest in the Trust; (2) the interpretation of the word "assets" as used in the Assistance Application; and (3) whether S.A.'s interest in the Trust falls within the scope of that word.

(1) What Is the Nature of S.A.'s Interest in the Trust?

[ 35 ] The Trust at issue in this case has the essential features of a Henson trust. The terms of the Trust do not confer any fixed entitlements on S.A., and instead provide the Trustees with ultimate discretion as to whether payments should be made to S.A. and, if so, how much should be paid. As I mentioned above, the terms of the Trust direct the Trustees to pay so much of the income and capital of the Trust as they "decide is necessary or advisable for the care, maintenance, education, or benefit of [S.A.]" (art. 1(a)(iv)(A)). S.A. therefore has no right to demand any particular payment from the Trust or to require that the Trustees make any payment to her. The fact that S.A. is herself a co-trustee does not change this: she can only exercise her discretion as a co-trustee together with her co-trustee sister, and cannot compel payments to herself.[^1]

[ 36 ] It is thus clear that, although the Trustees have an obligation to consider whether to make distributions out of the Trust for S.A.'s care and maintenance, they are not actually required to distribute any of the Trust's income or capital to S.A. unless they decide that doing so would be necessary or advisable for S.A.'s care, maintenance, education, or benefit.

[ 37 ] I would pause at this point to note that S.A.'s status as co-trustee is irrelevant to the determination of the nature of her interest in the Trust. In this capacity, she is required to reach decisions together with her co-trustee (her sister), and must exercise her discretion in good faith and in the interest of the beneficiary of the Trust (i.e., herself). However, it is apparent from the terms of the Trust that S.A. cannot unilaterally direct payments to herself — she must come to an agreement with her sister to do so. As a result, in her capacity as a trustee, S.A. cannot confer any greater entitlement on herself as the beneficiary of the Trust than that which is conferred on her by the terms of the Trust itself.

[ 38 ] Another key aspect of the Trust is that it is structured so that it cannot be unilaterally collapsed by S.A. under the rule in Saunders v. Vautier, according to which a beneficiary of a trust who is of full legal capacity and is the sole beneficiary can unilaterally terminate the trust and direct the trustee to transfer the trust property to him or her (Waters, Gillen and Smith, at p. 1195; Buschau v. Rogers Communications Inc., 2006 SCC 28, [2006] 1 S.C.R. 973, at para. 25). S.A. cannot invoke this rule because she is not the sole beneficiary of the Trust: others can also take from the Trust at S.A.'s death, should she not have made a valid testamentary disposition of her interest in the Trust. As a result, her ability to deal with the Trust property is entirely contingent on the exercise by her and her co-trustee of their discretion, which, as I mentioned above, must be exercised in a manner that benefits S.A. rather than S.A.'s creditors or estate.

[ 39 ] The foregoing analysis makes two things clear. First, the terms of the Trust provide the Trustees with exclusive discretion as to whether payments should be made to S.A. While the Trustees must exercise their discretion in good faith and in a manner consistent with the purpose for which the Trust was settled (see Waters, Gillen and Smith, at pp. 1172-73; A. H. Oosterhoff, R. Chambers and M. McInnes, Oosterhoff on Trusts: Text, Commentary and Materials (8th ed. 2014), at p. 972), courts generally cannot intervene to compel the Trustees to make payments to S.A.[^1] Second, S.A. cannot unilaterally collapse the Trust and access its capital.

(2) How Should the Word "Assets" as Used in the Assistance Application Be Interpreted?

[ 40 ] The next issue that must be addressed is the meaning of the word "assets" as it is used in the Assistance Application, which is the source of S.A.'s obligation to supply MVHC with information regarding her assets.

[ 41 ] Ascertaining the meaning of the word "assets" as used in the Assistance Application is essentially an exercise of contractual interpretation. The objective of such an exercise is to give effect to the mutual intention of the parties at the time they entered into the contract and to identify the meaning of the relevant words in light of the contract as a whole, giving those words their ordinary and grammatical meaning, unless doing so would lead to an absurd result: Sattva, at para. 47; Eli Lilly & Co. v. Novopharm Ltd., [1998] 2 S.C.R. 129, at para. 54.

[ 42 ] The Assistance Application requires applicants to indicate whether they have assets in excess of $25,000, but does not specify what exactly is encompassed within the meaning of the word "assets". It merely lists a few examples of some common financial instruments. MVHC argues that, since the Assistance Application is a document that was created for the purpose of administering its Rental Assistance Program, the word "assets" must be interpreted in accordance with the non-exhaustive definition found in the Asset Ceiling Policy.

[ 43 ] The Court of Appeal accepted that the Asset Ceiling Policy could be useful in interpreting the Assistance Application, stating that the former "establishes eligibility criteria for the [Rental Assistance Program] and assists in interpreting the 'assets' required to be disclosed on the [Assistance] Application" (para. 41). In the Court of Appeal's view, S.A.'s beneficial interest in the Trust formed part of her assets for the purpose of the Assistance Application, since it fell within the language "assets in which you have a beneficial interest" in the Asset Ceiling Policy.

[ 44 ] It is important to note, however, that the Assistance Application does not refer at all to the Asset Ceiling Policy. In particular, it does not purport to import the definition of the word "assets" found in the Asset Ceiling Policy. As a result, for the purposes of contractual interpretation, the Asset Ceiling Policy is relevant only to the extent that it forms part of the factual matrix — that is, only to the extent that it constitutes objective evidence of the background facts that both parties knew (or reasonably should have known) at the time of entering into any contract created by the completion and submission of the Assistance Application: Sattva, at paras. 47-48.

[ 45 ] As explained above, the scope of the relevant factual matrix consists "only of objective evidence of the background facts at the time of the execution of the contract", or in other words "knowledge that was or reasonably should have been within the knowledge of both parties at or before the date of contracting": Sattva, at para. 58. In this case, while S.A.'s counsel was presumably aware of the Asset Ceiling Policy, it cannot be said that S.A. herself would have been aware of it when she submitted her 2015 Assistance Application. There is no evidence indicating that the Asset Ceiling Policy was readily accessible to MVHC tenants. The Policy is internal to MVHC, and there is no indication that it was disclosed to S.A. or incorporated into the Assistance Application.

[ 46 ] If the definition in that policy does not apply, what should the word "assets" be understood to mean? The words in the Assistance Application must be given their ordinary and grammatical meaning in light of the specific context in which it was used. The common legal understanding of the word "asset", as reflected in various dictionaries, is as follows:

Property of all kinds, real and personal, tangible and intangible, including inter alia, for certain purposes, patents and causes of action which belong to any person including a corporation and the estate of a decedent.

(Black's Law Dictionary (6th ed. 1990), as cited in Stoor v. Stoor Estate, 2014 ONSC 5684, 5 E.T.R. (4th) 207, at para. 37)

[ 47 ] This common usage of the word "asset" aligns with the overall purpose of the Rental Assistance Program — which, according to MVHC, is to provide rent subsidies to tenants who are in significant financial need. It is clear that the purpose of an asset ceiling for means-tested rent subsidies is to ensure that tenants who are able to use their property to pay their rent will not be considered for assistance. It follows that the word "assets" was not intended to cover a person's theoretical interests in property that they are unable to actually access and use.

[ 48 ] For this reason, a reasonable person who interprets the Assistance Application objectively and without reference to the Asset Ceiling Policy would understand the word "assets" to mean an applicant's property or interests in property that can actually be used to discharge his or her debts and liabilities, including monthly rent.

(3) Does S.A.'s Interest in the Trust Fall Within the Meaning of the Word "Assets" as Used in the Assistance Application?

[ 49 ] Can it therefore be said that S.A.'s interest in the Trust — which, as explained above, is akin to a mere hope of receiving some or all of the Trust property at some future point — falls within the ordinary meaning of the word "assets" as I have described it above? In my view, the answer to this question is no.

[ 50 ] The Ontario Divisional Court's decision in Henson, to which the courts below referred, is instructive in this regard. The respondent in that case — Ms. Henson — was a person with disabilities who received family benefits under the Family Benefits Act, R.S.O. 1980, c. 151. She had also been settled a trust by her father, pursuant to which the trustee had absolute discretion to pay income and capital to her as he saw fit. The trustee had never made any payments to Ms. Henson. The issue was whether, given the trust, she was no longer eligible for family benefits.

[ 51 ] A regulation made under the Family Benefits Act ("Regulation") provided that a recipient, like Ms. Henson, would not be eligible for an allowance under that statute if he or she had liquid assets exceeding $3,000. The Divisional Court held that Ms. Henson's interest in the trust did not constitute a "liquid asset" within the meaning of the Regulation, on the basis that:

In our view, the provision of the will, set out above, gives the trustees absolute and unfettered discretion; the respondent could not compel the trustees to make payments to her if there were not funds in the estate. The beneficiary does not own the assets; rather, the trustee owns them for the benefit of the beneficiary.

(Henson, at p. 334)

[ 52 ] The Divisional Court's reasoning is highly applicable here, given the similarities between the definition of "liquid assets" in the Regulation and the meaning of the term "assets" as used in the Assistance Application. In both cases, the underlying concern is whether the person claiming benefits has sufficient resources to provide for his or her own needs without external assistance. S.A. does not own the Trust's income or capital and cannot independently compel payments to be made to her from the Trust. For this reason, I would conclude that her interest in the Trust is not an "asset" within the ordinary meaning of that term as it is used in the Assistance Application.

[ 53 ] In the case at bar, the Chambers Judge arrived at the opposite conclusion: that the meaning of the word "assets" is broad enough to include S.A.'s interest in the Trust, and that Henson does not assist S.A.'s position because the trust in that case conferred a "real, present" interest upon the beneficiary, and therefore cannot be said to have placed the trust assets outside of the beneficiary's control (2015 BCSC 2260, at para. 69). In my view, however, this reading of Henson is too narrow. The Divisional Court's finding in Henson clearly applies to any discretionary trust whose terms prevent the beneficiary from compelling distributions.

[ 54 ] With respect, I am of the view that the Chambers Judge's understanding of S.A.'s interest in the Trust represents an error of law. As explained above, S.A.'s status as a co-trustee does not change the nature of her interest as a beneficiary, since she and her co-trustee must jointly agree for any distributions to be made to her. For this reason, S.A. — just like Ms. Henson — is unable to compel the Trustees to make payments to her.

[ 55 ] I would add that these reasons should not be taken to suggest that the interest of a person with disabilities in a properly constituted Henson trust can never be treated as an "asset" for any purpose. What I have concluded here is only that S.A.'s interest in the Trust is not an "asset" within the ordinary meaning of that word as it is used in the Assistance Application.

[ 56 ] A careful reading of documents relevant to the resolution of this appeal leads me to conclude that the word "assets", as it is used in the Assistance Application, is not broad enough to encompass S.A.'s interest in the Trust. Her interest in the Trust is akin to a mere hope that she will receive some or all of the Trust property at some future point. As I have noted above, her financial circumstances are only ameliorated if and when the Trustees actually decide to make distributions to her. For this reason, the value of the Trust is not pertinent to the determination of S.A.'s eligibility to receive rental assistance.

[ 57 ] In the circumstances of this case, there is no question that MVHC can ask S.A. for information concerning the structure of the Trust in order to determine whether her interest in it can be characterized as a Henson trust (i.e., to confirm that S.A. cannot compel the Trustees to make payments to her and cannot unilaterally collapse the Trust). However, MVHC had no basis for demanding that S.A. provide information regarding the value of the Trust, because the value is irrelevant given that S.A.'s interest in it does not constitute an "asset" within the meaning of the Assistance Application.

[ 58 ] It follows, therefore, that MVHC was not entitled to require that S.A. provide information regarding the value of the Trust or to refuse to consider her 2015 Assistance Application when that information was not forthcoming. MVHC therefore breached its obligation to determine whether S.A. would receive a rent subsidy in accordance with the terms of the Assistance Application.

D. What Is the Appropriate Remedy?

[ 59 ] Having found that MVHC breached its obligation to determine whether S.A. would receive a rent subsidy in accordance with the terms of the Assistance Application when she refused to disclose the value of the Trust, I must now determine what remedy is appropriate.

(1) Declaratory Relief

[ 60 ] S.A. requests, among other things, that this Court issue a declaration that the assets in the Trust are not hers for the purpose of the Assistance Application. Declaratory relief is granted by a court in the exercise of its discretion, and is subject to three conditions: (1) the question must be a real and not hypothetical question; (2) the person raising the question must have a real interest in raising it; and (3) the issue must be contested: Daniels v. Canada (Indian Affairs and Northern Development), 2016 SCC 12, [2016] 1 S.C.R. 99, at para. 11; Canada (Prime Minister) v. Khadr, 2010 SCC 3, [2010] 1 S.C.R. 44, at para. 46; Operation Dismantle Inc. v. The Queen, [1985] 1 S.C.R. 441, at p. 459; Solosky v. The Queen, [1980] 1 S.C.R. 821, at p. 832.

[ 61 ] In my view, all of these criteria are met in this case. As I explained above (in Part A of the analysis), the interpretation of the word "asset" as it is used in the Assistance Application is a justiciable issue that is real, and one in which both parties clearly have a genuine interest. Moreover, a declaration would have practical utility, as it would settle the live controversy between the parties: Ewert v. Canada, 2018 SCC 30, [2018] 2 S.C.R. 165, at para. 81. I would therefore issue the following declaration: (1) S.A. has a right to have her application for a rent subsidy considered by MVHC in accordance with the terms of the Assistance Application; and (2) her interest in the Trust is not an "asset" for the purpose of such a determination. I would set aside the declarations made by the Court of Appeal.

(2) Monetary Order

[ 62 ] In addition to declaratory relief, S.A. seeks an order requiring MVHC to refund her the difference between the rent that she has paid (or that has been paid on her behalf) since June 2015 and the subsidized rent she would have paid had her 2015 Assistance Application been considered by MVHC.

[ 63 ] The interpretation to the effect that the word "assets" as used in the Assistance Application does not encompass S.A.'s interest in the Trust means that she was in fact eligible to be considered by MVHC for rental assistance in 2015. MVHC's failure to consider S.A.'s Assistance Application for 2015 therefore constituted a breach of its obligation as set out in the Tenancy Agreement. It follows that S.A. may be entitled to a monetary remedy for MVHC's breach.

[ 64 ] As a factual matter, it is important to acknowledge that MVHC does not guarantee that eligible tenants will actually receive rent subsidies. As I mentioned above, how much, if anything, an eligible tenant may actually receive from the Rental Assistance Program is entirely within MVHC's discretion. A monetary remedy must therefore be proportionate to the actual loss suffered by S.A. as a result of MVHC's breach. This means that any monetary award to S.A. must be calculated by reference to the subsidy she would have received, if any, if MVHC had considered her Assistance Application in accordance with its terms. Whether S.A. would have been granted any subsidy (and the amount thereof) is a question of fact that will depend in part on how MVHC would likely have exercised its discretion in relation to S.A. had it been required to consider her Assistance Application.

[ 65 ] Given the content of the factual record, the most appropriate course of action would be to remit this issue for determination by the court of original jurisdiction (i.e., the British Columbia Supreme Court) for it to analyze the evidence and, if appropriate, grant an award of damages that would put S.A. in the position that she would have been in had MVHC not breached its obligation.

[ 66 ] Contrary to what my colleague Justice Rowe seems to suggest at paras. 77, 86-88 and 93 of his reasons, this does not mean that the British Columbia Supreme Court can deal with this issue by simply quantifying and ordering payment of the subsidy that S.A. was entitled to receive. As I noted above, a monetary remedy must be proportionate to the actual loss suffered by S.A. as a result of MVHC's breach. The factual record before this Court is insufficient for this Court to make this determination. In particular, there is insufficient evidence before this Court about how MVHC would likely have exercised its discretion if it had considered S.A.'s Assistance Application in accordance with its terms. Rather, what I am saying is that this issue should be remitted to the British Columbia Supreme Court for the development of a factual record sufficient to determine whether an award of damages is appropriate in the circumstances and, if so, what that award should be.

V. Costs

[ 67 ] In addition to declaratory and monetary orders, S.A. seeks special costs, calculated on a solicitor-and-client basis, in this Court and in the courts below. She submits that such a departure from the usual rule on costs is justified both by the public interest nature of this appeal and by her limited financial means. This request is made pursuant to the test set out by this Court in Carter v. Canada (Attorney General), 2015 SCC 5, [2015] 1 S.C.R. 331, at para. 140.

[ 68 ] In Carter v. Canada (Attorney General), 2015 SCC 5, [2015] 1 S.C.R. 331, this Court identified two considerations that can help to guide the exercise of a judge's discretion on a motion for special costs in a case involving the public interest:

First, the case must involve matters of public interest that are truly exceptional. It is not enough that the issues raised have not previously been resolved or that they transcend the individual interests of the successful litigant: they must also have a significant and widespread societal impact.

[ 69 ] In my view, neither of these considerations supports the awarding of special costs to S.A. in the circumstances of the instant case. With respect to the first, the issue raised in this appeal is not "truly exceptional", as it does not have a sufficiently significant or widespread societal impact. While Henson trusts are used fairly widely in Canada, the specific question addressed in this appeal — whether a Henson trust can be treated as an "asset" for the purpose of a private landlord's discretionary rental assistance program — has a more limited societal impact than that which would typically justify the awarding of special costs.

[ 70 ] As to the second consideration, it cannot be said that S.A. has "no personal, proprietary or pecuniary interest in the litigation that would justify the proceedings on economic grounds". The issue raised in her petition relates directly to her right to be considered by MVHC for rental assistance, and the financial stakes involved — i.e., the value of the rent subsidy — are sufficiently significant that it would be reasonable for S.A. to have sought judicial resolution of this issue, even in the absence of public interest considerations.

[ 71 ] On the basis of Carter, therefore, I am not persuaded that it would be appropriate to grant S.A.'s request for solicitor-and-client costs. However, my view is that S.A., as the successful party, should be awarded her costs on a party-and-party basis in this Court and in the courts below.

VI. Motion to Strike

[ 72 ] MVHC brought a motion to strike several paragraphs from the factums of two interveners. First, it submits that the Canadian Association for Community Living and People First of Canada violated the terms of their intervention order by introducing new evidence, since their joint factum referenced the prevalence of Henson trusts in Canada. Second, MVHC submits that the Disability Alliance BC Society ("DABC") violated the terms of their intervention order by raising the issue of the availability of declaratory relief and by presenting an argument relating to the interpretation of the Assistance Application that was not directly in support of any party's position. For the reasons that follow, I would grant MVHC's motion to strike in part.

VII. Conclusion

[ 73 ] For all of these reasons, the appeal is allowed with costs to S.A. in this Court and in the courts below. I would set aside the declarations made by the Court of Appeal, and declare that S.A. has a right to have her application for a rent subsidy considered by MVHC in accordance with the terms of the Assistance Application, and that her interest in the Trust is not an "asset" for the purpose of such a determination. I would also remit the issue of the monetary remedy to the British Columbia Supreme Court, to be dealt with in accordance with these reasons.

[ 74 ] I would also grant MVHC's motion to strike in part, and order that Section E of Part III of DABC's factum (paras. 24-34) be struck accordingly.

Reasons Dissenting in Part

The reasons of Brown and Rowe JJ. were delivered by

Rowe J. (dissenting) —

I. Overview

[ 75 ] I agree with the majority's statement of the facts and with their analysis with respect to Henson trusts. I also agree with their disposition relating to Metro Vancouver Housing Corporation's ("MVHC") motion to strike portions of Disability Alliance BC Society's ("DABC") factum. However, I respectfully disagree with the majority's conclusion that MVHC had a contractual obligation to consider S.A.'s Assistance Application and that declaratory relief is available to S.A.

[ 76 ] This appeal initially arose from two petitions heard at the Supreme Court of British Columbia. The relief that S.A. seeks has not fundamentally changed. S.A. asks for a declaration that her Henson Trust is not an asset for the purpose of her Assistance Application. She also seeks an order that MVHC refund to her the difference between the subsidized and unsubsidized rent since June 2015.

[ 77 ] The majority states that the main issue before this Court is whether S.A.'s interest in the Trust can be treated as her "asset" for the purpose of determining whether she meets the eligibility criteria associated with the Rental Assistance Program. In the view of S.A. and the majority, an award of declaratory and monetary relief is available to her because MVHC had a contractual obligation — arising from the Tenancy Agreement — to consider her Assistance Application in accordance with the terms thereof. In my respectful view, no such obligation exists. Without this obligation, there is no basis on which the Court can grant the relief sought by S.A., because the decision about whether to provide S.A. with rental assistance is wholly within MVHC's discretion and therefore is not justiciable.

[ 78 ] Whether declaratory relief is available is central to the disposition of this appeal. S.A. seeks it by way of r. 2-1(2)(c) of the British Columbia Supreme Court Civil Rules, B.C. Reg. 168/2009. The availability of this relief is premised on the actual or potential infringement of an applicant's rights. Absent a legal entitlement to anchor a declaration, one cannot be granted: Ledcor Construction Ltd. v. Northbridge Indemnity Insurance Co., 2016 SCC 37, [2016] 2 S.C.R. 23, at para. 68.

II. Analysis

[ 79 ] It is important to recall the scheme by which MVHC operates. As a non-profit corporation with a mandate to provide affordable rental housing in the Greater Vancouver region, MVHC provides two forms of "means-tested" assistance to tenants. First, MVHC provides rental units to eligible tenants — those who meet certain income and other criteria — at subsidized rates. Second, MVHC provides a separate and additional rental subsidy to certain tenants through its Rental Assistance Program.

[ 80 ] The discretionary nature of the Rental Assistance Program is evident upon reviewing the Tenancy Agreement and the Assistance Application. The latter is not part of the Tenancy Agreement. Under the Tenancy Agreement, S.A. has no contractual right to this additional rental assistance. Filling out and submitting the Assistance Application does not create a contract. At the time of contracting, both parties would have understood MVHC to have the discretion to decide whether to enter into a rental assistance agreement with any given tenant.

[ 81 ] MVHC's discretion in respect of its Rental Assistance Program is limited only by its agreements with British Columbia Housing Management Commission ("BC Housing"). The Umbrella Agreement provides that MVHC must offer rental assistance to a minimum of 15 percent of the units in each of MVHC's properties. This obligation, however, is not limited to the Assistance Application process. MVHC could offer rental assistance by any means it considers appropriate.

[ 82 ] In this respect, the Assistance Application, which asks for information about income and assets, is a document designed to assist MVHC in running its discretionary Rental Assistance Program. It enables MVHC to collect information that is relevant to its determination of whether any applicant is to receive rental assistance. Simply put, the Assistance Application is not a contract; it is a tool MVHC uses to gather information to exercise its discretion.

[ 83 ] In this way, individuals who satisfy the basic eligibility requirements are tenants from among whom MVHC may choose to provide additional rental assistance. The Tenancy Agreement and Assistance Application are both silent as to how MVHC is to utilize its funds. Simply put, the choice of who receives assistance from among individuals who satisfy the basic eligibility requirements is MVHC's to make. MVHC's discretion is not limited to consideration of the information provided in the Assistance Application or by the manner it distributed assistance in the past.

[ 84 ] The Rental Assistance Agreement marks the conclusion of this discretionary process. MVHC only enters into an agreement with tenants in relation to its Rental Assistance Program once it has determined that it will provide assistance to them. No contractual obligations in respect of the Rental Assistance Program are created by either the Tenancy Agreement or the Assistance Application.

A. There Is No Contractual Obligation to Consider S.A.'s Assistance Application

[ 85 ] My colleagues concede that S.A. does not have a contractual entitlement to receive rental assistance, but they take the view that MVHC has an obligation to consider S.A.'s Assistance Application, and to do so without reference to her Trust. They go on to say that if S.A.'s assets are less than $25,000 (when the Trust is excluded from the analysis), then MVHC must consider her Assistance Application and determine whether to grant her rental assistance in accordance with its terms. In my respectful view, they err in reaching this conclusion.

[ 86 ] My colleagues rely on clauses 5(a) and 2(a)(xii) of the Tenancy Agreement to support the proposition that MVHC had a contractual obligation to consider whether to adjust S.A.'s rent in accordance with the Assistance Application. Clause 5(a) of the Tenancy Agreement sets out the way in which rent is to be paid. It provides that S.A.'s rent consists of the "Unit Rent" (the full rental amount) less the "decrease in rent determined in accordance with [her] current income and the terms of a Rental Assistance Agreement". Clause 2(a)(xii) defines the term "Unit Rent" as the monthly rent before any increase or decrease "determined in accordance with [S.A.'s] income and the terms of a Rental Assistance [A]greement". The fact that there is a line in the Tenancy Agreement for recording the decrease in S.A.'s rent does not, in my view, impose an obligation on MVHC to consider whether she is to receive rental assistance. It merely records any rental assistance that MVHC has already decided to provide.

[ 87 ] Building on their finding that S.A. is entitled to have her application considered, the majority goes on to conclude that this implies a specific framework binding on MVHC for the exercise of its discretion in deciding whether to grant rental assistance. In their view, MVHC is limited to considering the information provided in the Assistance Application and must decide according to criteria it has established in the past (majority reasons, at para. 32). This framework, they conclude, is rooted in an agreement between MVHC and S.A. arising from the Tenancy Agreement and from the course of dealing between them. In my respectful view, such a framework does not exist.

[ 88 ] This highlights a further problem with granting declaratory relief in the circumstances. This is that contrary to the suggestion of the majority, a declaration as to the meaning of the word "asset" does not settle the "live controversy" between the parties (majority reasons, at para. 61). While I agree with the majority that S.A.'s interest in the Trust should not be considered an "asset" for any purpose related to means-tested assistance, even granting this declaration will not ensure that S.A. will receive rental assistance. MVHC is not bound to provide rental assistance to S.A. even if she is eligible.

[ 89 ] The situation would be different if MVHC had agreed to provide S.A. with rental assistance for a given year. If upon learning of her Trust, MVHC sought to terminate its agreement with S.A. and cease providing rental assistance to her for that term on the basis that she no longer met the basic eligibility criteria, then there would be a live contract and a contractual entitlement at stake. In such a case, if S.A. sought declaratory relief to the effect that her Trust was not an asset for the purpose of that agreement, a court would be permitted to grant it. However, this is not the situation in the present case.

[ 90 ] For any tenant who has merely applied for rental assistance, there is no Rental Assistance Agreement, and therefore no contract, until it has been determined that they will in fact receive rental assistance. The fact that the Tenancy Agreement refers to the Rental Assistance Agreement does not mean that a Rental Assistance Agreement must come into existence by virtue of the terms of the Tenancy Agreement. Rather, the language of the Tenancy Agreement merely acknowledges that MVHC may, in the exercise of its discretion, at some point decide to enter into a Rental Assistance Agreement with S.A.

B. Is MVHC Entitled to Declaratory Relief?

[ 91 ] With the foregoing in mind, I turn to the question of whether MVHC is entitled to the declaratory relief that it was granted in the courts below. If the decision by MVHC of whether to provide rental assistance is not justiciable, then neither S.A. nor MVHC can receive declaratory relief concerning that decision. Just as S.A. does not have a right for her application to be considered, MVHC does not have a right to compel S.A. to apply for rental assistance, nor a right to receive any information from A that will help it determine whether she should receive any assistance.

[ 92 ] Again, any declaratory relief must be anchored in an applicant's legal entitlements. Initially, MVHC sought declaratory relief on the basis that it was entitled to consider information about S.A.'s Trust as part of its discretionary application process. I note that the Chambers Judge granted declaratory relief to MVHC in these terms, but that the Court of Appeal changed the character of the declaration that was granted. The Court of Appeal issued a declaration to the effect that S.A. must disclose information about the Trust before MVHC will consider her application. This modified declaration reflects the application of the Asset Ceiling Policy, which includes in its definition of "assets" all assets in which a tenant has a beneficial interest, including a trust. In light of my conclusions above, neither of these declarations has a sufficient legal basis.

[ 93 ] There are potential implications of the majority's rationale that extend beyond the facts of this case. On the basis of what seems to be an implied contractual entitlement to have one's application considered — an entitlement which I do not find to exist — the majority opens the door for another court to make an award to S.A. if that court is of the view that MVHC ought to have exercised its discretion in a particular fashion. It seems to me that this has far-reaching implications. In the future, if a claimant persuades a court, first, that a charitable or other voluntary organization has set criteria and called for applications, would this imply that the organization has an obligation to consider the applications in accordance with the criteria? And, second, if the claimant's application meets the criteria, then might not a court order the organization to provide the benefit or fund the proposed project that was the subject of the application? A fortiori, might not a court do so if the claimant shows there was some "unfairness" on the part of the organization in the application of its criteria? To grant relief in such circumstances, including declaratory relief, would expand the boundaries of what is justiciable to include discretionary decisions taken by charitable and other voluntary organizations, which would be unwise. I know of no basis in law to do so.

III. Conclusion

[ 94 ] In conclusion, I would allow the appeal in part and would set aside the declaratory relief granted to MVHC by the British Columbia Court of Appeal. I would decline to grant the other relief sought by S.A. I would make no order as to costs.

Appendix

ON THE APPLICATION of the Plaintiff, [S.A.], and on hearing counsel for the Plaintiff, Lauren Blake-Borrell, and on reading the materials filed;

THIS COURT ORDERS that:

1. the share of the Deceased's estate left to the Plaintiff be placed in a discretionary trust, and in particular, an order that paragraphs 3(a) and 3(d) of the Last Will and Testament of [J.A.], signed May 11, 2004 and admitted to probate by this Court on October 18, 2010 be varied as follows:

Paragraph 3(a)

"[S.A.]'s Discretionary Trust"

(a) if my daughter [S.A.] survives me:

(i) I appoint [S.A.] and my daughter [J.W.] as the trustees (the "[S.A.] Discretionary Fund Trustees") of [S.A.]'s Discretionary Fund (as defined below);

(ii) if [J.W.] is unwilling or unable to act or continue to act as a [S.A.] Discretionary Fund Trustee, I appoint such person or corporate trustee as [S.A.], in writing, appoints to fill the vacancy in the office of [S.A.] Discretionary Fund Trustee;

(iii) any reference to "[S.A.] Discretionary Fund Trustee" or "[S.A.] Discretionary Fund Trustees" includes all genders and the singular or the plural as the context requires;

(iv) I direct my Trustee to transfer the balance (the "[S.A.] Discretionary Fund") of my bank account, #XXXX-XXX at Bank of Montreal, 4395 Dunbar Street, Vancouver, B.C. to the [S.A.] Discretionary Fund Trustees to be held by the [S.A.] Discretionary Fund Trustees as follows:

A. pay so much of the income and capital of [S.A.]'s Discretionary Fund as the [S.A.] Discretionary Fund Trustees decide is necessary or advisable for the care, maintenance, education, or benefit of [S.A.];

B. add any income not paid in any year to the capital of [S.A.]'s Discretionary Fund;

C. on the date (the "Material Date") of [S.A.]'s death, give what remains of [S.A.]'s Discretionary Fund to the person or persons in such proportions, on such trusts, and subject to such terms and conditions as [S.A.] may by [S.A.]'s Will appoint, provided that the power of appointment may not be exercised by [S.A.] in favour of [S.A.] or [S.A.]'s creditors;

D. if the power of appointment in paragraph 3(a)(iv)C has not been exercised before the Material Date or to the extent that the power of appointment does not extend or take effect, the [S.A.] Discretionary Fund Trustees will pay the [S.A.] Discretionary Fund (or that part of the [S.A.] Discretionary Fund to which the power of appointment does not extend or take effect) among those persons who would have inherited [S.A.]'s estate if [S.A.] had died leaving only the [S.A.] Discretionary Fund (or that part of the [S.A.] Discretionary Fund to which the power of appointment does not extend or take effect) in her estate, and leaving no creditors, except under no circumstances shall the [S.A.] Discretionary Fund be considered to form part of [S.A.]'s estate;

E. the provisions of paragraphs 4 and 5 inclusive of this Will, included the powers given to my Trustee in those provisions, apply to the administration by the [S.A.] Discretionary Fund Trustees of [S.A.]'s Discretionary Fund and when being applied, references in those paragraphs to "my estate" and "my Trustee" will be read as being to [S.A.]'s Discretionary Fund and the [S.A.] Discretionary Fund Trustees respectively;"

Paragraph 3(d)

"(d) to divide the residue of my estate into three (3) equal shares, one share for each of my children, [S.A.], [M.A.] and [J.W.], and I direct my Trustee to transfer the share for [S.A.] to the [S.A.] Discretionary Fund Trustees to be added to [S.A.]'s Discretionary Fund and dealt with as part of it;"

2. The Plaintiff's special costs of this application be paid from her share of the Estate of [J.A.]

Appeal allowed, Brown and Rowe JJ. dissenting in part.

Solicitors for the appellant: McCarthy Tétrault, Vancouver.

Solicitors for the respondent: Alexander Holburn Beaudin & Lang, Vancouver.

Solicitors for the intervener Attorney General of British Columbia: Attorney General of British Columbia, Victoria.

Solicitors for the interveners Canadian Association for Community Living and People First of Canada: PooranLaw Professional Corporation, Toronto.

Solicitors for the intervener Council of Canadians with Disabilities: ARCH Disability Law Centre, Toronto.

Solicitors for the interveners Income Security Advocacy Centre and HIV & AIDS Legal Clinic Ontario: Borden Ladner Gervais, Toronto; HIV & AIDS Legal Clinic Ontario, Toronto; Income Security Advocacy Center, Toronto.

Solicitors for the intervener Disability Alliance BC Society: Clark Wilson, Vancouver; Conway, Baxter, Wilson, Ottawa.

[^1]: While courts have supervisory jurisdiction over the trustee's exercise of discretion (or failure to exercise discretion), they generally do not have the authority to compel the trustees to exercise their discretion in any particular manner (Waters, Gillen and Smith, at pp. 1172-73; A. H. Oosterhoff, R. Chamber and M. McInnes, Oosterhoff on Trusts: Text, Commentary and Materials (8th ed. 2014), at p. 972).