Nunavunmi Maligaliuqtiit

NUNAVUT COURT OF JUSTICE

Cour de justice du Nunavut
Citation:

Tatty v. RIHA, 2015 NUCJ 23

Date:
Docket:
Registry:

20150806
18-14-401
Iqaluit

Applicant:

Donna Tatty
-and-

Respondent:

Rankin Inlet Housing Association

________________________________________________________________________
Before:

The Honourable Mr. Justice Mahar

Counsel (Applicant):
Counsel (Respondent):

Mark Mossey
Michelle S. Theriault

Location Heard:
Date Heard:
Matters:

Iqaluit, Nunavut
January 13, 2015
Canadian Charter of Rights and Freedoms, Part I of the
Constitution Act, 1982, being Schedule B to the Canada
Act 1982 (UK), 1982, c 11; Judicial Review

REASONS FOR JUDGMENT

(NOTE: This document may have been edited for publication)

I. INTRODUCTION
[1]

The applicant, Donna Tatty, asks for judicial review of a decision of

the Rankin Inlet Housing Association [the RIHA] Board of Directors
[the Board] made July 24, 2014, in which the Board upheld two earlier
decisions of the RIHA after an appeal by the applicant. In these earlier
decisions, the RIHA had removed the applicant from the waiting list
for social housing as a result of what was determined to be a change
in her residency and then rejected her subsequent application of July
22, 2013, on the basis of insufficient length of residency.

II. BACKGROUND
[2]

The applicant is an Inuit single mother of two very young children and
a lifelong resident of Rankin Inlet, Nunavut. After the end of her
relationship with the father of her children in 2009, she and her
children went from one tenuous living arrangement to another.

[3]

In April of either 2011 or 2012, she applied for social housing, her
application was accepted, and she was placed on the waiting list.

[4]

Section 1.1 of the Bylaws of the RIHA require that an applicant must
have been residing in Rankin Inlet for 12 months or more prior to
making an application. For this purpose, an applicant will not be
considered to have been resident in Rankin Inlet if they have either a
mortgage or a residential tenancy agreement outside of Rankin Inlet.

[5]

The Bylaws are silent on the waiting list and its administration. As a
matter of practice, however, the RIHA takes the position that an
applicant on the waiting list who obtains either a mortgage or a
residential tenancy agreement outside of Rankin Inlet ceased to be a
resident for their purposes and will be removed from the waiting list.
Further, such an applicant will only be able to re-apply after waiting
the requisite 12 months. This is the situation that the applicant found
herself in.

[6]

The need for social housing in Rankin Inlet and Nunavut generally is
dire. At the time of the hearing of this application, there were
approximately 100 households on the Rankin Inlet waiting list. The
applicant and her children, therefore, continued to live in various
unsatisfactory situations for some time after her application for social
housing.

[7]

In February of 2013, the applicants position on the waiting list was

number 16. While attending a parenting workshop in Churchill,
Manitoba, she learned of the easy availability of public housing there.
She made an application, received housing, and relocated with her
children to Churchill on May 10, 2013.

[8]

Prior to the move, in April of 2013, the applicant informed the RIHA of
her decision to relocate. On three occasions she was informed that if
she followed through on this, she would be removed from the waiting
list and required to begin her residency from the beginning should she
decide to return. On these occasions, she gave no indication that the
contemplated move was anything other than permanent.

[9]

There appears to have been an unfortunate breakdown in

communication between the RIHA and the applicant on the occasions
noted above. The applicant had no other reason for moving to
Churchill other than the lack of available housing in Rankin Inlet. She
had no friends or extended family there, no job or educational
program to go to, and no supports available other than those normally
provided by social services and welfare. I accept as a fact, for the
purpose of this analysis, that neither the applicant nor the RIHA
explored the possibility of a temporary relocation as part of their
discussions. She did not propose this solution, but neither was it
offered to her. I also accept as a fact that the applicant would at all
times have wanted to return to Rankin Inlet if housing became
available to her. On the information provided, no other conclusion
makes sense.

[10] Sometime soon after her arrival in Churchill, the applicant was
informed that her name had been removed from the RIHA waiting list.
On July 8, 2013, the applicant returned to Rankin Inlet, after spending
less than two months in Churchill. It is not clear to me precisely why
she did this. While it is suggested that her reason for doing so was
her removal from the RIHA waiting list and a desire to re-establish her
status in that regard, this does not fully explain her decision. What I
take from her return is that the applicants connection to Churchill was
tenuous at best and that, in spite of obtaining housing in Churchill, her
life there, alone with two small children, was predictably not easy, and
that her real home has always been and continues to be Rankin Inlet.

[11] After being informed that, in addition to losing her place on the waiting
list, her previous application was no longer approved due to her
relocation, Ms. Tatty attempted to reapply for social housing on July
22, 2013. Her application was rejected because she had not been a
resident of Rankin Inlet for 12 months following her return to the
community on July 8, 2013.
[12] Since her return to Rankin Inlet, Ms. Tatty has failed to secure
reasonable accommodation and has essentially been couch-surfing,
even spending some time at the womens shelter.
III. ISSUES
[13] The Applicant raises five issues, which suggest differing standards of
review:
(i).

Was the Boards decision that Ms. Tatty was not a

member of the RIHA reasonable?

(ii).

Was the Board correct in determining that the RIHA

possesses the statutory authority to remove
applicants from the waiting list if they no longer
reside in Rankin Inlet?

(iii).

Was the Boards decision that Ms. Tatty was no

longer a resident of Rankin Inlet reasonable?

(iv).

Was the Boards decision not to undertake a

Canadian Charter of Rights and Freedoms, Part I of
the Constitution Act, 1982, being Schedule B to the
Canada Act 1982 (UK), 1982, c 11 [Charter],
analysis regarding a potential infringement of Ms.
Tattys mobility rights under s. 6 of the Charter
correct?

IV. ANALYSIS
[14] The Court was provided with extensive argument, both written and
oral, on the above five issues by counsel for both the applicant and
RIHA. I do not propose to cover these arguments in detail, because I
did not find most of the issues helpful in resolving this case.
[15] The Bylaws in question do not contain a mechanism for removing
applicants from the waiting list. The Bylaws appear to create
members out of both approved applicants and tenants. There are
procedures dealing with actual tenancies, but none for would-be
tenants after approval. Counsel for the applicant suggests that this
obvious oversight creates a situation where the RIHA cannot remove
applicants from the waiting list. I reject this suggestion. The RIHA has
broad discretion to determine eligibility for social housing and
placement on the waiting list. This discretion would clearly extend to
making ongoing determinations about eligibility on the basis of
changes in circumstances. There is no need for a formal mechanism
for this in the Bylaws because it is an integral aspect of the day-to-day
duties of the RIHA.
[16] Following this reasoning, the RIHA clearly has the statutory authority
to remove applicants from the waiting list as well as to rescind their
approval on an ongoing basis. The RIHA has the power to approve
applications and place applicants on the waiting list and the RIHA,
therefore, has the power to remove applicants and rescind approvals.
The only requirement is that this be done reasonably and
transparently. The RIHA, therefore, has the authority to remove
applicants from the housing list for social housing in Rankin Inlet
because they no longer reside in Rankin Inlet.
[17] The real issue in this case is a slightly expanded version of issue
number 3 the reasonableness of the RIHAs decision to define Ms.
Tatty as a non-resident and the reasonableness of the consequences
that flowed from this decision.

[18] The standard of review I must apply to this issue is reasonableness.

This is a mixed question of statutory interpretation and fact,
specifically dealing with the exercise of a fairly broad discretion by the
RIHA. There is also a significant amount of expertise brought to bear
by the RIHA, a point on which I disagree with counsel for the
applicant, which also suggests the more deferential standard of
review. Under this standard of review, I must not simply replace the
decision of the RIHA with my own, but rather ask whether the decision
at issue is one of the possible reasonable outcomes suggested by the
law and the facts. As in Dunsmuir v New Brunswick, 2008 SCC 9,
[2008] 1 SCR 190, at para. 47:
certain questions that come before administrative tribunals do not
lend themselves to one specific, particular result. Instead, they may
give rise to a number of possible, reasonable conclusions. Tribunals
have a margin of appreciation within the range of acceptable and
rational solutions.

[19] On its face, the decision by the RIHA is logically persuasive. The
Bylaw is silent on the consequences to an applicant of moving away
from the community, but since residency is required for approval, it is
only sensible to assume that no longer living in the community would
result in the loss of resident status and removal from the approved
pool of applicants. This makes sense and I can easily understand why
the RIHA and the Board felt compelled to follow this reasoning.
[20] There is, however, an alternate and more compelling analysis. While
the RIHA has the ability to remove applicants from the approved list
due to a change in residency, which in most cases of relocation would
be entirely sensible and reasonable, the decision to define an
applicant as non-resident simply because they enter into a residential
tenancy in another community bears further scrutiny.
[21] As has already been noted, there is a desperate need for social
housing in Nunavut. Many people are living in overcrowded and
insecure conditions due to a lack of available, adequate housing. The
local housing authorities face the unenviable task of dividing up a
resource that doesnt answer a fraction of the need for it. It is no
surprise, therefore, that many people in need find themselves
languishing on waiting lists for a long time before they are finally given
somewhere to call home.

[22] It is a clich that desperate deeds are done by desperate people. I

already accepted as a fact that the applicant had no reason to move
to Churchill beyond the need for housing. She was willing to travel
alone, with two children under school age, to a community where she
had no one to help her as a result of compelling need. People,
especially people in the circumstances of the applicant, want to stay
in their home communities unless there is a good reason to leave.
[23] The list of candidates for social housing is not made up of identical
individuals with identical concerns. Many applicants will have
supportive family and friends and will have no trouble making
temporary arrangements while they wait for housing. The only people
who will take the extreme step of moving to a strange community for
no reason other than the availability of housing are those people who
have no other choice. It would be tragically ironic if the very people
most in need of social housing were to lose their access to it because
of the dramatic steps they may take to find a place to live while they
languish on a waiting list.
[24] This is why I find that it was unreasonable for the RIHA to define the
applicant as a non-resident on the basis of her temporary relocation to
Churchill. It would have been better if she had clearly indicated that
her move was only while she waited for housing in Rankin Inlet, but
clearly a temporary move is what it was.
[25] It also seems counterintuitive that a resource like easily available
housing in another community could not be utilized in a more
systematic way, but I leave that to agencies better able to address
that sort of thing than the court.
V. CONCLUSION
A. Decision
[26] I declare the decisions of the Rankin Inlet Housing Association Board
of Directors dated July 17, 2014, and July 22, 2013, as invalid for the
above reasons.
[27] I hereby order, by way of mandamus, that Ms. Tatty be placed back
on the RIHA housing list in a position consistent with her original
application.

B. Costs
[28] While I have found the end result to be unreasonable, the Rankin Inlet
Housing Association attempted at all times to be fair to the applicant. I
decline to order costs.

Dated at the City of Iqaluit this 6th day of August, 2015

___________________
Justice A. Mahar
Nunavut Court of Justice