Court File and Parties

COURT FILE NO.: CV-23-0010 DATE: 2024-07-04 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Matachewan First Nation, Applicant – and – Shannon Alberta, Respondent

Counsel: Joel Morales, for the Applicant Gemma Healy-Murphy, for the Respondent

HEARD: June 12, 2024

Decision on Application

R.D. GORDON J.

Overview

[1] Shannon Alberta occupies House 35 on the Matachewan First Nation (“MFN”) reserve. MFN says she has failed to pay rent and has made unauthorized use of the home. It seeks an order that she be evicted and that it be granted an order for possession.

[2] Ms. Alberta takes the position that she is owner of the home and not a tenant. Alternatively, she is of the view that she is not in breach of any lease because any rent she may owe is offset by the cost of repairs to the home that she has made and for which MFN is responsible. She says that the unauthorized use complained of is not on the property she occupies.

[3] Ms. Alberta also argues that MFN should be denied any relief because it is in breach of the fiduciary duty to her as a member of the Band. She says it has ignored her repeated requests to have serious repair issues addressed and has failed to document her ownership of the home in accordance with her requests.

[4] Lastly, Ms. Alberta points out that there is a federal investigation into the conduct of MFN’s treatment of her and that this application should be stayed pending the outcome of that investigation.

Background Facts

[5] MFN is a “Band” within the meaning of the Indian Act, RSC 1985, c I-5. It owns several houses on its reserve and enters into agreements with its band members to provide them with housing.

[6] On August 1, 2010 Ms. Alberta began to occupy one of the homes known as House 35. Prior to doing so she signed a one-year lease agreement with MFN providing for, among other things, rent payment of $350 per month. The agreement was not renewed upon expiry however Ms. Alberta has continued to occupy the home since.

[7] From time to time over the intervening years, Ms. Alberta went into significant arrears of the required monthly payment and was given various notices to vacate. MFN would, at times, divert money due from it to Ms. Alberta on account of those rents. On one occasion MFN took steps under the Residential Tenancies Act to end Ms. Alberta’s occupation but abandoned that application when it was pointed out that the Act had no application to properties on reserve. In any event, Ms. Alberta acknowledges that she has made no payment whatsoever to MFN since August of 2020, almost four years ago.

[8] Ms. Alberta’s evidence is that she occupies the property on the understanding that it was a lease to own arrangement that required MFN to provide and maintain the home in a good state of repair. She says MFN has reneged on its agreement to provide ownership and on its obligation to repair. She says she has paid at least $38,500 in repairs, maintenance and upgrades to the house that should properly have been the responsibility of MFN.

Analysis

Does Ms. Alberta Own or Rent the Home?

[9] Ms. Alberta rents the home.

[10] Although I do not doubt that Ms. Alberta was told that after two years MFN would consider entering into a rent to own agreement for the home, no such agreement was ever made. Ms. Alberta is unable to articulate the price for the property, the required number of payments before it would be made hers, or a proposed closing date. All of these terms would be necessary for a valid rent to own agreement to have been reached.

[11] Ms. Alberta points out that in 2018 a former Chief Sonny Batisse told her that she owned the house and was responsible for its repair and maintenance. This is hearsay evidence. Mr. Batisse did not provide an affidavit and there is no evidence he was Chief of MFN when the statement is alleged to have been made.

[12] She also points out that in 2014 or 2015 a band council member, Jean Lemieux, told her that the house was her “land claim”. Even if this could be taken as a vicarious admission, there is no context given for the statement and it does not, on its face, indicate ownership of the house by Ms. Alberta. I would note that even if I were to accept Ms. Alberta’s evidence that there was a rent to own agreement beginning two years after she took occupancy of the home, this statement would have been made within too short a time for her to have made payment in full.

Is Ms. Alberta in Breach of her Rental Obligations?

[13] The original lease entered into by the parties expired after one year. It was not renewed. It does not provide for overholding. However, there can be no question that Ms. Alberta was required to pay rent. Indeed she did so, although unreliably, for many years. She has admitted that no rent has been paid since September of 2020.

[14] However, she says that she does not owe any rent because MFN has not accounted for various credits she is due for repairs to the house that were its responsibility. Ms. Alberta provides only bare statements in support of her position such as at paragraph 53 of her affidavit: “I continued to pay rent until in or around September 2020. By then, I had paid approximately $38,500 in rent and incurred the same amount, if not significantly more, in repairs, maintenance and upgrades since 2010, and had been requesting that the Band facilitate the rent-to-own program for me for years without response.”

[15] Ms. Alberta provides few details of the work she undertook and no invoices or other documentation to substantiate her statements. There is no indication of where the funds came from to pay for these repairs and no proof of payment.

[16] The evidence before me is not sufficient to establish that rents owing by Ms. Alberta are set off by repairs costs she has incurred.

[17] I am also not persuaded that MFN’s conduct in allowing Ms. Alberta to fall into arrears time and again, and applying federal payouts on account of arrears operates as a waiver of its right to now regain possession of the property. It cannot be said that MFN led Ms. Alberta to believe they would not require her to pay rent. Her arrears were brought to her attention time and again over the course of the last 14 years, and various notices to evict for non-payment of rent were served. She is now almost four years in arrears of rent. Nothing MFN has done would lead a reasonable person to conclude that her obligation to pay rent over such an extended period had been waived.

Does MFN Owe Ms. Alberta a Fiduciary Duty in these Circumstances?

[18] I do not doubt that MFN owes Ms. Alberta a fiduciary duty as a member of the Band which it governs. I also do not doubt that circumstances may arise by which MFN may owe a fiduciary duty to Ms. Alberta personally. However, it would be a mistake to say that a fiduciary duty is owed in every interaction between the two. In their relationship of landlord and tenant no such duty is owed. Their relationship is contractual not fiduciary.

Should MFN’s Application be Stayed?

[19] Ms. Alberta argues that this application should be stayed pending the outcome of a complaint she has lodged against the band with Crown-Indigenous Relations and Northern Affairs Canada and Indigenous Services Canada.

[20] Although Ms. Alberta describes the complaint as “regarding several of the Band’s wrongdoings, including but not limited to the Band’s treatment of me in relation to House 69 – Lot 35; its withholding of distributions of funds to which I and my children are entitled; and representations it made to the federal government regarding the repair and maintenance of reserve homes”, the actual complaint is not included in the materials, nor is the mandate or authority of the allegations and complaint office in question. It is therefore not possible for me to know with any particularity what overlap there may be of the issues in this proceeding and in that investigation, or how the findings of that investigation would impact upon this application.

[21] There is no good reason to stay this application pending the outcome of that investigation.

[22] A second reason advanced for a stay of this application is to allow her to apply for judicial review of the Band’s decision to seek her eviction.

[23] Assuming judicial review of the Band’s decision could be sought, the Band resolution upon which this application is based was passed on October 5, 2022. The time for judicial review of that decision expired 30 days after the decision was first communicated to Ms. Alberta. Even if the decision was not communicated to Ms. Alberta until she admitted service of the Application on February 21, 2023 her time for filing an application for judicial review has long since expired.

Other

[24] MFN also bases its application on a secondary claim that Ms. Alberta has made unauthorized use of the property rented to her. It admits, however, that such uses are not on the property rented to her but on an adjoining lot. In the circumstances, this alternate basis for the application is without merit.

[25] Ms. Alberta included in her materials various photographs to indicate that MFN has failed to maintain the building as would a reasonable landlord. However, she has made no application against MFN and brought no claim against it. Just as MFN has contractual rights arising from its landlord and tenant relationship with Ms. Alberta, so too does Ms. Alberta. If she feels MFN has not met its contractual obligations, she may wish to seek appropriate relief from it, subject to such defences as MFN may assert.

[26] Finally, MFN has asked for an order that it may rely upon Nishnawbe-Aski Police Service to enforce the order I make. I am not prepared to make such an order. Typically, an order that terminates a tenancy and provides possession is enforced by a writ of possession. I see no reason why this case should be any different. I am particularly hesitant to order the involvement of Nishnawbe-Aski Police Service without notice to it.

[27] Although I will be granting MFN possession of House 35, it is appropriate that Ms. Alberta be allowed a reasonable amount of time to find alternate accommodation for her and her family.

Conclusion

[28] Ms. Alberta has not paid rent in almost four years. She is obviously in breach of the rental agreement. Accordingly, it is ordered that:

1. The tenancy of House 35 on the Matachewan First Nation Reserve is terminated.
2. Ms. Alberta shall deliver vacant possession of House 35 not later than August 31, 2024.
3. In the event Ms. Alberta does not deliver possession of House 35 on or before August 31, 2024, Matachewan First Nation may move for a writ of possession in accordance with Rule 60.10 of the Rules of Civil Procedure and seek enforcement of the writ of possession in the usual course.

[29] If the parties are unable to agree on costs, they may make written submissions to me, not to exceed three pages plus attachments each. The Applicant’s submissions shall be due by July 31, 2024. The Respondent’s submissions shall be due by August 30, 2024.

The Honourable Mr. Justice R.D. Gordon

Released: July 4, 2024