Court File and Parties

COURT FILE NO.: 2038/21 DATE: 2021/10/25

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: CAROL JULIET LEBRUN, Applicant AND District of Sault Ste. Marie Social Services Administration Board and Pawating Cooperative Homes Inc., Respondents

BEFORE: Sachs, W.D. Newton, Ryan Bell JJ.

COUNSEL: Christopher Folz, for Ms. Lebrun Steven G. Shoemaker, for District of Sault Ste. Marie Social Services Administration Board Hugh MacDonald, for Pawating Cooperative Homes Inc.

HEARD: October 14, 2021, at Sudbury, via Zoom

ENDORSEMENT

RYAN BELL J.

Overview

[1] The applicant Carol Juliet Lebrun seeks judicial review of the determination by Pawating Cooperative Homes Inc. that she is not eligible for a Rent-Geared-to Income subsidy (“RGI”), including Pawating’s rejection of her claim based on extenuating circumstances. Ms. Lebrun argues that the authority to decide her eligibility for RGI is, by regulation, granted to the District of Sault Ste. Marie Social Services Administration Board. It is Ms. Lebrun’s position that the Board has not delegated this decision-making authority to Pawating.

[2] In my view, the Board expressly delegated to Pawating the authority to determine RGI eligibility, including the discretion to consider claims based on extenuating circumstances. I would therefore dismiss the application for judicial review.

Background

[3] Ms. Lebrun has resided in a two-bedroom unit at Pawating since 1993. Her son moved out of the unit in 2016. As a result, Ms. Lebrun became “over-housed”, meaning that, in order to continue to qualify for RGI, she would need to move into a one-bedroom unit.

[4] Ms. Lebrun was placed on an internal waitlist for one year (for a one-bedroom unit in Pawating). In 2018, Ms Lebrun applied to be placed on the centralized waitlist (for a one-bedroom unit within the Sault Ste. Marie region), and indicated that she was open to a one-bedroom unit in Pawating.

[5] On January 24, 2020, Ms. Lebrun refused Pawating’s offer of a one-bedroom unit in the cooperative. She said that she knew the woman who had passed away in the unit offered, she needed a spare bedroom for her son, and she could not live closer to a particular tenant due to that tenant’s historic sexual victimization of her son.

[6] On January 29, 2020, Pawating advised Ms. Lebrun that her RGI would be terminated effective May 1, 2020 if she declined the offer to move into the one-bedroom unit.

[7] On February 10, 2020, Ms. Lebrun provided a medical note to Pawating that suggested she needed her son to stay with her overnight to provide her with support. Pawating encouraged Ms. Lebrun to attend a meeting of Pawating’s board of directors to appeal the decision regarding the loss of her RGI. Ms. Lebrun did not attend the meeting. Pawating upheld its decision that Ms. Lebrun was no longer eligible to receive RGI.

[8] Since May 1, 2020, Ms. Lebrun has been charged market rent on her unit. She has fallen into arrears because of her inability to pay the market rent.

[9] On May 14, 2020, Ms. Lebrun provided Pawating with a further medical note. The note suggested that Ms. Lebrun required her son’s assistance around the house and to take her to and from medical appointments. The note also suggested that a move closer to a particular tenant would trigger symptoms of PTSD. Pawating’s board of directors considered the note and advised Ms. Lebrun on May 25, 2020 that their decision remained unchanged.

[10] The Board and Pawating have commenced proceedings before the Landlord and Tenant Board to evict Ms. Lebrun because of the accumulated rent arrears. The eviction proceedings are stayed by order of Boucher J. pending the hearing of this application for judicial review.

Statutory Scheme

[11] The legislative framework for community housing in Ontario is set out in the Housing Services Act, 2011, S.O. 2011, c. 6, Sched. 1. As set out in s. 1 of the Act, the purpose of the legislation is:

(a) to provide for community based planning and delivery of housing and homelessness services with general provincial oversight and policy direction, and

(b) to provide flexibility for service managers and housing providers while retaining requirements with respect to housing programs that predate this Act and housing projects that are subject to those programs.

[12] The Board is a service manager under the Act. A service manager determines whether a household is eligible for RGI: Housing Services Act, s. 45. Eligibility for RGI is determined in accordance with the “prescribed provincial eligibility rules” as set out in O. Reg. 367/11 (the “Regulation”) and “the local eligibility rules made by the service manager”: Housing Services Act, s. 42.

[13] Under s. 32.2(1) of the Regulation – the provincial eligibility rules – a household ceases to be eligible for RGI if the household refuses one offer by the service manager for housing which meets occupancy standards and is in a housing project for which the household has expressed a preference. Notwithstanding a refusal, a service manager has discretion to determine the household remains eligible for RGI if the service manager is satisfied there are extenuating circumstances: O. Reg. 367/11, s. 32.2(3). The local eligibility rule process must also provide that the household ceases to be eligible for RGI on the refusal of one offer and must provide for the discretion to consider extenuating circumstances: O. Reg. 367/11, s. 38(4).

[14] Prior to January 1, 2020, the provincial eligibility rules provided that a household would become ineligible for RGI if the household refused three offers by the service manager for housing which meets occupancy standards. The Board advised Ms. Lebrun of the change in eligibility rule.

[15] There is no question that, under s. 17(1) of the Act, the Board has the authority to delegate “all or some of its powers and duties under the Act with respect to all or part of its service area.” The Board and Pawating entered into a comprehensive Delegation Agreement on January 30, 2012. The issue on this application is whether the Board delegated to Pawating the authority to decide continued RGI eligibility, including considering claims for extenuating circumstances.

Analysis

[16] In my view, the Board expressly delegated to Pawating the authority to determine eligibility for RGI, including the consideration of claims for extenuating circumstances, in Part IV – Occupancy Standards of the Delegation Agreement.

[17] Part IV – Occupancy Standards provides:

4.01 The service agent [Pawating] agrees to observe and comply with the service manager’s [the Board’s] Revised Directive 2002-01a, Service Manager Local Occupancy Standards as per Subsections 43(1) and (2) of the Act and Section 42 of Regulation 367/11 for the purpose of determining the size and type of unit in respect of which a household with prescribed characteristics is eligible to receive rent-geared-to-income assistance.

4.02 The service agent agrees that it shall receive requests and withdrawals of requests as described in Section 42 of Regulation 367/11.

4.03 The service agent agrees to implement, observe and comply with the local occupancy standards established by the service manager pursuant to Subsections 43(1) and (2) of the Act.

[18] Effective January 1, 2020, the provincial eligibility rules were updated to provide that a household ceases to be eligible for RGI if the household refuses one offer by the service manager for housing. The local eligibility rule and process were amended to accord with the revisions to the Regulation. The Board advised Pawating of the change and directed them to implement the change. Pursuant to s. 10.01 of the Delegation Agreement, the service agent – Pawating – is required to comply with and implement any “new policy, guideline, procedure or directive.”

[19] On a plain reading of s. 4.01 of the Delegation Agreement, the Board expressly delegated to Pawating the authority to determine the size and type of unit in respect of which a household with prescribed characteristics is eligible to receive RGI, in accordance with the provincial and the local eligibility rules. In making the determination regarding a household’s eligibility for RGI, Pawating is, pursuant to s. 4.03 of the Delegation Agreement, required to implement, observe, and comply with the local occupancy standards established by the Board. In addition, Pawating is, pursuant to s. 10.01 of the Delegation Agreement, required to implement, observe, and comply any new policy, guideline, procedure or directive established by the Board.

[20] The rules, directives, and standards provide that a household ceases to be eligible for RGI if the household refuses one offer for housing which meets occupancy standards and is in a housing project for which the household has expressed a preference. Pawating determined that Ms. Lebrun was no longer eligible to receive RGI after she refused Pawating’s offer of a one-bedroom unit. Pawating then considered, but ultimately refused, Ms. Lebrun’s request that she continue to receive RGI based on extenuating circumstances. Both determinations by Pawating fell squarely within its delegated authority under s. 4.01 of the Delegation Agreement.

[21] I also find that Pawating’s decision that Ms. Lebrun did not establish extenuating circumstances was a reasonable one. After Ms. Lebrun was advised that she was over-housed, she applied to be rehoused and indicated that her first choice was to continue to live at Pawating. She did so knowing that all the one-bedroom units at Pawating were located close to one another. Thus, any one-bedroom unit would be close to the particular tenant about whom she was concerned. Ms. Lebrun’s son lived close to her; it was therefore reasonable for Pawating to conclude that he did not need to be housed in the same place as Ms. Lebrun. Finally, while it might have been upsetting for Ms. Lebrun to move into a unit where someone she knew had recently died, it was reasonable for Pawating to conclude that this did not qualify as an extenuating circumstance sufficient to justify her refusal of the unit she was offered. Social housing is a very scarce resource and Ms. Lebrun’s refusal of the unit offered had a direct impact on Pawating’s ability to offer her two-bedroom unit to a family in need of a two-bedroom unit to accommodate their household.

Disposition

[22] For these reasons, I would dismiss the application for judicial review.

[23] The parties were unable to reach agreement on the issue of costs. The Board does not seek its costs against Ms. Lebrun. Pawating requests costs in the amount of $5,000 plus HST. In recognition of Ms. Lebrun’s precarious financial position, I would order that she pay Pawating’s costs of the application, fixed in the amount of $1,000.

Ryan Bell J.

I agree Sachs J.

I agree W.D. Newton J.

Date: October 25, 2021