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Social Housing
MORE CASES
Part 2 | Part 3
. Ali v. Peel (Regional Municipality)
In Ali v. Peel (Regional Municipality) (Ont CA, 2023) the Court of Appeal considers an appeal of a JR that dismissed the applicant's "request to be given special priority status on the waitlist for subsidized housing". In the course of the ruling the court sets out some social housing basics:(1) The Region and the administration of the subsidized housing waitlist
[6] The Housing Services Act, 2011 governs housing subsidies, also known as rent-geared-to-income, in Ontario. In accordance with the regulations under the Act, the Region is designated as a service manager responsible for administering social housing programs in the Region of Peel.
[7] As part of this responsibility, the Region assesses applications for subsidized housing in accordance with specified statutory and regulatory criteria. The Region places applicants who meet the criteria on a waitlist. Applicants who are seeking to leave an abusive household are entitled to be placed on a special priority waitlist.
[8] In 2016, there were approximately 13,000 eligible households on the waitlist for subsidized housing in Peel. At that time, the Region’s waitlist for a one-bedroom unit for a single person who was found to be eligible for special priority status was 1.5 years rather than the 2.9-year period for people on the regular waitlist.
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(2) The statutory scheme and the Region’s policy
[26] The Region is designated as a service manager under O. Reg. 367/11, Sched. 2, made under the Housing Services Act, 2011 (the “Regulation”).
[27] Section 47(1) of the Housing Services Act, 2011 requires the service manager to create “a system for selecting households from those waiting for rent-geared-to-income assistance in the housing projects in the service manager’s service area.” Section 47(2) of the Act specifies that the system is to include, amongst other matters, “priority rules for households waiting for rent-geared-to-income assistance”.
[28] Section 48(1) of the Act provides that one of the service manager’s roles is to determine “the priority of households waiting for rent-geared-to-income assistance, including whether a household is included in a category given priority over other categories.” Section 48(2) specifies that the service manager is to make these determinations in accordance with “[t]he prescribed provincial priority rules” and the priority rules established by the service manager. Section 48(3) states that, in the case of a conflict with the provincial priority rules and the service manager’s rules, the provincial rules are to be given priority.
[29] The Regulation sets out the provincial eligibility rules for rent-geared-to income, including for placement on the special priority list. There have been some changes to the Regulation since the Region’s decisions in 2016. The provisions of the Regulation referred to below were those in place in 2016, at the time of the Region’s decisions.
[30] Section 54(1) of the Regulation specifies conditions for placement on the special priority list, including that the individual must have been abused by another person:(1) A household is eligible to be included in the special priority household category if,
(a) a member of the household has been abused by another individual;
(b) the abusing individual is or was living with the abused member or is sponsoring the abused member as an immigrant; and
(c) the abused member intends to live permanently apart from the abusing individual. [31] The Regulation, in s. 1(1), defines “abuse” to include “controlling behaviour”:“abuse” means,
(a) one or more incidents of,
(i) physical or sexual violence,
(ii) controlling behaviour, or
(iii) intentional destruction of or intentional injury to property, or
(b) words, actions or gestures that threaten an individual or lead an individual to fear for his or her safety. [Emphasis added.] [32] Section 1(2) prescribes the list of people who can be considered as abusers, and includes a person on whom the applicant is “financially dependent”:For the purpose of the definition of “abuse” in subsection (1), abuse is done by any of the following persons against an individual:
1. The individual’s spouse, parent, child or other relative.
2. A person who is sponsoring the individual as an immigrant.
3. A person on whom the individual is emotionally, physically or financially dependent. [Emphasis added.] [33] Section 54(2) of the Regulation sets out the conditions under which a person no longer living with an abuser can apply to be placed on the special priority list. This includes where the application was made within three months of the person no longer living with the abuser.
[34] Section 58 of the Regulation sets out the information an applicant must provide in support of a request for special priority status and, in turn, requires the Region to accept an applicant’s statement that they have been abused that complies with these requirements.
[35] The Region has developed a policy titled “Policies & Procedures No. 2008-07, Subject: Victims of Family Violence” that sets out the criteria and procedures for inclusion on the Region’s special priority list for subsidized housing. . Ali v. Peel (Regional Municipality)
In Ali v. Peel (Regional Municipality) (Ont CA, 2023) the Court of Appeal considers (and denied) an appeal of a JR that dismissed the applicant's "request to be given special priority status on the waitlist for subsidized housing", on the normal JR 'reasonbleness standard:[2] Ms. Ali, who worked as a live-in caregiver, had sought special priority status because her employer had abused her. She relied on a regulatory provision, made under the Housing Services Act, 2011, S.O. 2011, c. 6, Sched. 1, that gives special priority status for subsidized housing to people who have been abused. The provision defines abuse as including controlling behaviour, and includes in the list of possible abusers those on whom people applying for subsidized housing are financially dependent: O. Reg. 367/11, s. 1(1)-1(2).
[3] The Region denied Ms. Ali special priority status because she was not in a familial relationship with her abuser and because her economic dependence on her abuser ended with the end of the employment relationship. The Divisional Court held that the Region’s decision was reasonable because it was consistent with the relevant statutory scheme. The Divisional Court also noted that the Region’s mandate was to allocate scarce resources amongst people with competing interests.
[4] Ms. Ali submits that the Divisional Court erred in its interpretation of the relevant regulatory provision, arguing that the special priority list for subsidized housing is not meant to be restricted to people who were abused by family members. She also argues that the Divisional Court improperly inserted its own rationale for upholding the Region’s decision rather than focusing on the Region’s reasons.
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(3) The Region’s decision refusing special priority status
[13] The Region found that Ms. Ali met the criteria for rent-geared-to-income housing, but denied her request to be placed on the special priority status list.
[14] In a letter dated August 4, 2016, the Region stated that Ms. Ali did not meet the criteria for special priority status because she was “not in a relationship with the alleged abuser” and because the “abuser was identified as [her] employer”.
[15] Ms. Ali requested an internal appeal of the decision. In a decision dated September 16, 2016, a Housing Programs Manager with the Region denied the appeal. The rationale for denying the appeal was that Ms. Ali was in a business relationship and not in a family relationship with her abuser:Special priority is only given under very limited circumstances to victims of abuse. Under the interpretation of the priority, legislation and policy specifies who the abuser can be.
The intent of the special priority is to provide earlier access to affordable housing for victims of abuse within a familial relationship. Our review confirms the relationship between you and the alleged abuser(s) is not a familial relationship, but rather a business relationship between an employee and employer. Your financial dependency upon your employer was within the same context as previously mentioned. You were in a business relationship, and your source of income ceased when the business relationship ended with the termination of your employment. [Emphasis added.] ....
[17] The Divisional Court explained that it was reasonable for the Region to decide that special priority for victims of abuse did not extend to employment relationships given the history and purpose of special priority status:The Region found that an employment relationship is not the type of financial dependency encompassed by the Regulation. This is consistent with the purposes and reality of the governing legislative regime. The history of the program has focused on assisting abused women to escape domestic violence. While this has expanded over time, the regulatory scheme has focused on protecting the safety of household members by enabling them to leave an unsafe and abusive situation. The interpretation adopted by the Region is one which enables those whose safety is at risk to receive priority placement so they can separate permanently from their abuser. [18] The Divisional Court also noted that the Region’s role was to allocate scarce resources amongst people with competing interests:Here, the issue is where the applicant will stand on a waitlist. This requires the decision-maker to balance the competing interests of others on the waitlist, who are not before the court, and raises public policy issues about rationing scarce resources. This decision accords with the purposes and public realities of the housing priority scheme, which enables applicants whose safety is at risk to separate permanently from their abuser as soon as possible. [19] The Divisional Court explained that financial dependence in the context of an employment relationship ends with the end of the relationship:The applicant was a live-in caregiver entitled to the protections of the Employments Standards Act, 2000, S.O. 2000, c. 41. Any financial dependence is limited to the duration of employment relationship; such a relationship is finite, and when it ends, there is no financial dependence. The applicant could apply for another job, and in this case, she asserted legal rights through civil proceedings for wrongful dismissal and unpaid wages, alternatives which are not available to those who are victims of intimate partner violence, for example. [20] Finally, the Divisional Court emphasized the deference it owed to the Region’s interpretation of the relevant statutory scheme, and concluded that “[i]nterpreting ‘financially dependent’ to exclude an employer/employee relationship in the context of the special priority list is a reasonable decision consistent with legislative intent and the statutory and regulatory context surrounding the scarce resource of subsidized housing.” . Ramllal v. City of Toronto
In Ramllal v. City of Toronto (Div Court, 2023) the Divisional Court considered in a JR what was initially advanced as a jurisdictional issue, here whether the social housing administrative body ('the City of Toronto Review Body') could reconsider a decision to denial RGI subsidy eligibility. The court held that this was not a jurisdictional issue however, as the reconsideration (as reconsiderations sometimes do, especially in social assistance matters) should have proceeded in two stages: 1. the decision whether to conduct a reconsideration and if so, 2. it's conduct - and this process was misconceived, being conflated with a jurisdictional error. While the Review Body erred in this respect the court held that it's ultimate JR decision to be reasonable on the facts [para 31]:(b) The Review Body Had Jurisdiction to Consider the Request for Reconsideration
[26] The Review Body found that it did not have jurisdiction to reconsider its January 2020 decision in August 2021 because the Applicant was no longer a tenant of TCHC. Before this court, counsel argues that this decision – to decline jurisdiction – is reasonable, on the following basis:The Review Body made a reasonable determination that since the Applicant was no longer living in TCHC housing nor was he receiving RGI, the request for reconsideration was essentially moot….
Given the extraordinarily high number of people waiting to receive RGI, the Review Body cannot permit former recipients to jump to the front of the line for RGI assistance by reconsidering prior decisions of the Review Body without an adequate basis for reconsideration. This would be unfair to other vulnerable people who are waiting to receive RGI and create uncertainty and backlog in the system. (Review Body Factum, paras. 57-58) [27] This is not an argument about jurisdiction. It is an argument that the decision not to conduct a reconsideration was a reasonable exercise of the Review Body’s discretion – a discretion which only exists if the Review Body has jurisdiction to conduct a reconsideration. Conflating an exercise of discretion with a question of jurisdiction was not reasonable.
[28] The HSA does not provide for reconsideration of decisions of the Review Body. Neither does the HSA prohibit reconsideration or review of such decisions. There is common law authority to review or reconsider decisions for limited purposes, which needs to be applied flexibly with a firm eye on the policy reasons favouring finality of decisions: Chandler v. Alberta Association of Architects, 1989 CanLII 41 (SCC), [1989] 2 SCR 848, para. 76, 82; Paper Machinery Ltd. v. J.O. Ross Engineering Corp., 1934 CanLII 1 (SCC), [1934] SCR 186.
[29] It is clear from the history of this matter that the Review Body conducts its proceedings in a flexible manner, with a view to giving applicants a fair opportunity to put their information before the Review Body for an assessment of their eligibility. This flexible process includes affording an opportunity to seek reconsideration if a tenant is still in RGI-supported housing. The basis on which the Review Body argues it had no continuing jurisdiction is that the decision had become “moot”. It was not “moot” for the Applicant: a favourable decision would have the effect of reducing substantially the arrears he owes to TCHC and could impact his timing in seeking fresh RGI-subsidized housing.
[30] It would behoove the Review Body to develop rules respecting any process to review or reconsider its decisions – including deadlines to take such steps and the limited bases on which such reviews may be conducted. In the absence of such rules, it can exercise its discretion to entertain a review or reconsideration request on the basis of the common law principles referenced above: the jurisdiction is limited substantively and should be exercised “flexibly” with a firm eye to the principle of finality of decisions.
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Summary and Disposition
[33] The Review Body erred in finding it had no jurisdiction over the request for reconsideration. Had it exercised its discretion whether to conduct a reconsideration, in all the circumstances of this case, it surely would have declined to do so: what was being sought was a fresh hearing, on fresh documents, long past the time by which such documents had to be provided in support of the continued RGI subsidy.
[34] The decision made in January 2020 was reasonable. The Applicant submitted falsified documents in support of his RGI subsidy. When this was pointed out to him, he was given further opportunities to provide original documents in support of his application. He did not do so. His response, in this court, is to blame a stranger to the litigation, without supporting documentation and without notice to that person, and to make serious unfounded allegations against TCHC and City staff. The Applicant was treated with sensitivity and patience in the process below and has no one but himself to blame for his failure to provide accurate documentation. The application is dismissed. . Ramllal v. City of Toronto
In Ramllal v. City of Toronto (Div Court, 2023) the Divisional Court reviews in a JR portions of the City of Toronto social housing procedures. Note that each of Ontario's 47 municipal 'service providers' can have different procedures:(a) Regulatory Context
[2] The Housing Services Act, 2011, S.O. 2011, c. 6, Sched. 1 (“HSA") applies to social housing programs across Ontario. The HSA provides for rent-geared-to-income (“RGI”) subsidies, which make up the difference between what the household pays for their unit and the lower of the indexed or actual market rent for that unit. The respondent City is designated as a service manager under the HSA and can delegate its responsibilities for RGI administration to housing providers, such as the intervenor Toronto Community Housing Corporation (“TCHC”).
[3] Section 52 of the HSA requires the City to determine periodically whether households receiving an RGI subsidy continue to be eligible. The City generally delegates these periodic reviews to housing providers like TCHC. Pursuant to s. 155 of the HSA, the City must have a system for reviews requested by households of TCHC eligibility determinations. The City has established the respondent Review Body for this purpose.
[4] Section 29 of O. Reg. 367/11, under the HSA, provides that a household will cease to be eligible for RGI if the household “fails to provide information requested by the service manager” for the purposes of “determining, under subsection 52(1) of the Act or under a rule under paragraph 6 of subsection 46(1), whether the household continues to be eligible”.
[5] When a household loses its RGI eligibility, housing providers such as TCHC issue a Notice of Decision – Loss of Eligibility for RGI Assistance (“Notice of Decision”). Reviews of TCHC decisions with respect to continuing RGI eligibility are undertaken by the Review Body, which is comprised of a panel of three staff members of the City’s Housing Stability Services unit (“HSS”).
[6] The City uses a two-stage process to consider requests for review. First, staff undertake a preliminary review to determine if the file is eligible for review. Second, if the file is eligible for a review, the Review Body will conduct the review. Paragraphs 7-20 are useful as a walking-through of these procedures, as they are rarely considered by the courts.
. Dahlia McPherson v. City of Toronto, RGI Eligibility Review Board
In Dahlia McPherson v. City of Toronto, RGI Eligibility Review Board (Div Ct, 2022) the Divisional Court considered a judicial review application from a decision of the Toronto service manager's delegate, the City of Toronto Review Body [Toronto Community Housing], to refuse to conduct a late-filed statutory review of an earlier RGI-disentitlement decision. There are no particularly interesting Housing Services Act points made in the case, but I link it for the scarcity (and variability, there are 47 different service managers in Ontario) of social housing judicial review cases (there are no statutory court appeals).
. Susan Miller v. Toronto Community Housing Corporation and Toronto Community Housing Corporation RGI Review Body
In Susan Miller v. Toronto Community Housing Corporation and Toronto Community Housing Corporation RGI Review Body (Div Ct, 2022) the Divisional Court considered a rare Housing Services Act (HSA)(social housing) judicial review case from Toronto. As I note in my Social Housing Legal Guide, municipalities are central to the administration of the HSA, and many municipalities are out of their depth in meeting the necessary administrative standards - so the Toronto example is useful for it's relative administrative competency [SS: although the court held the interpretation of the City's rules to have been 'unreasonable', granting the judicial review]:Housing Services Act, 2011
[4] The legislature passed the Housing Services Act,0F[1] (the “HSA”) to provide the legal framework for community-based planning and delivery of housing and homelessness services with general provincial oversight and policy direction.
[5] The City of Toronto is a Service Manager under the HAS. The TCHC, which is a Local Housing Corporation under the HSA, assists the City of Toronto in fulfilling its obligations. TCHC rents the vast majority of its residential units at a subsidized rate. It administers rent-geared-to-income assistance in accordance with the HSA. The Review Body is not a distinct legal identity but rather is an arm of the TCHC dealing with the subsidized residential units.
RGI Assistance
[6] Rent-geared-to-income assistance (“RGI assistance”) is addressed in Part V of the HSA. RGI assistance is financial assistance provided in respect of a household to reduce the amount it must otherwise pay to occupy a unit: s. 38. Eligibility for RGI assistance is determined in accordance with prescribed provincial eligibility rules, which are set out in General, O. Reg. 367/11, and local eligibility rules made by the Service Manager: s. 42(1).
[7] In understanding the discussion below, it shall be important to keep in mind that pursuant to the requirements of the HAS, the Service Manager; i.e., the City of Toronto sets the rules applied by the Review Body, which is an arm of the TCHC.
[8] Applications for RGI assistance are made to the Service Manager, in the form authorized by the Service Manager, and must include certain information and documents, including those required by the Service Manager: s. 44.
[9] The Service Manager determines, inter alia:• eligibility for RGI assistance (s. 45), and continuing RGI assistance (s. 52), in accordance with the eligibility rules and any prescribed requirements.
• the quantum of rent payable by a household receiving RGI assistance, in accordance with prescribed requirements (s. 50). [10] The Service Manager is required to review eligibility for RGI assistance on a periodic basis or such other times, as the Service Manager considers appropriate. Finally, rent is calculated based on the total household income in accordance with the rules established by the Service Manager.
Reviews and Review Process
[11] Part X of the HSA deals with reviews. A household can request a review: s. 156. The Statutory Powers Procedure Act,1F[2] does not apply to these reviews: HSA, s. 158.
[12] The Service Manager must have a system for dealing with these reviews: subs. 155(1). This system, which is contained in the City of Toronto’s RGI Administration Manual, must comply with prescribed requirements, and include both a provision for a Review Body and procedural rules for reviews: ss. 155(3) and (4). These rules must state when a review may be requested and when a decision by the Review Body must be made: O. Reg. 367/11, 138(1)(i) and (ii). The Review Body can substitute its decision for the one that was reviewed, must give its decision and reasons in writing, and it must give notice of its decision and reasons: HSA, s. 158. For present purposes, I emphasize that the Review Body must give a reasoned decision in writing.
[13] The City’s RGI Administration Manual addresses a number of other matters, related to the RGI Reviews process. The TCHC RGI Review Body Process document further codifies the applicable review process. It details certain requirements concerning notices of decision. Paragraph 2 states:2. Request for RGI Review
Household requests review:
Loss of Subsidy Reasons:
Requests for review must be made within thirty (30) calendar days (plus five mailing days, if the request if mailed by the tenant) after the notice of decision has been given to the Household by Toronto Community Housing. If the Household missed the deadline they can still submit a Request for RGI Review form up to the effective date on the letter.
Rent Calculation:
Requests for review must be made within thrity (30) calendar days (plus five mailing days, if the request is mailed by the tenant). If the Household missed the deadline they can still submit a Request for RGI Review up to the next annual review date. (For example: 12 months from the effective date of the rent charge).
Exception: Retro rent charges. A Household must request a review no later than 12 months after the date on the notice of decision letter.
All other reasons:
Requests for review must be made within thirty (30) calendar days (plus five mailing days, if the request is mailed by the tenant).
If no request for RGI Review is received within the review period as noted above the decision is final.
In exceptional circumstances, if the Household missed the deadline they can submit a Request for RGI Review. The RGI Review Body will make a decision whether to proceed with the review.
Exceptional circumstances may include, but are not limited to:
• If a one person Household was hospitalized and incapable of receiving or responding to the Notice of Decision within the Request for RGI Review period, the request for RGI Review must be made as soon as possible after the Household received the Notice of Decision.
• The Household must provide documentation to prove exceptional circumstances.
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