Decision Content
St. Croix v NWT Housing Corporation, S-1-CV-2018-000052 2018 NWTSC 72
IN THE SUPREME COURT OF THE NORTHWEST TERRITORIES
IN THE MATTER OF:
MARINA CLAUDETTE JACQUELINE ST. CROIX
Applicant
- v -
NORTHWEST TERRITORIES HOUSING CORPORATION
Respondent
_________________________________________________________ Transcript of the Reasons for Judgment delivered by The Honourable Judge S.H. Smallwood, sitting in Yellowknife, in the Northwest Territories, on the 26th day of October, 2018.
_________________________________________________________
APPEARANCES:
Ms. M. St. Croix: Self-Represented
Mr. D. McNiven: Counsel for the Respondent
1 THE COURT: This is an appeal from a
2 decision of the Rental Officer made pursuant to
3 the Residential Tenancies Act.
4 There is a bit of history to this matter.
5 The Respondent, Northwest Territories Housing
6 Corporation, filed an application with the Rental
7 Officer on January 16th, 2017, claiming that the
8 Applicant, Marina St. Croix, was abusive to the
9 staff at the Yellowknife Housing Authority.
10 A hearing was held on May 11th, 2017,
11 without the Applicant appearing. The application
12 was granted by the Rental Officer, and an order
13 was made.
14 The Applicant appealed that decision to this
15 Court, complaining that she had not received
16 notice of the hearing. On consent, the matter
17 was returned to the rental office for a new
18 hearing.
19 A second hearing was held on January 31st,
20 2018, following which the Rental Officer granted
21 the Housing Corporation's application in a
22 decision released on February 9th, 2018.
23 The evidence presented by the Respondent at
24 the hearing was based upon an incident which had
25 occurred at the Respondent's office on January 26 13th, 2017.
27 The Applicant had attended the office on
1 that day, and the Respondent Housing Corporation
2 alleged that the Applicant had been verbally
3 abusive to staff.
4 In support of the application, the
5 Respondent had two employees testify, Aya Burshan
6 and Bob Bies, and also referred to the notes of
7 Janet Stephenson, which were on the Applicant's
8 file at the Housing Corporation, and to the
9 evidence of Cameron O'Keefe, who testified at the
10 first hearing.
11 The order of the Rental Officer required the
12 Applicant to comply with her obligation to not
13 disturb the landlord or other tenants' enjoyment
14 of the rental premises or residential complex and
15 not to breach that obligation again.
16 Ms. St. Croix filed an Originating Notice,
17 appealing the decision on February 22nd, 2018.
18 There are a number of grounds raised in the
19 Originating Notice, which can be distilled into
20 two areas: issues of procedural fairness, and
21 bias or lack of impartiality of the Rental
22 Officer.
23 The standard of review for decisions of the
24 Rental Officer has been previously decided by
25 this Court on several occasions. As stated in
26 Inuvik Housing Authority v Alunik, 2014 NWTSC 37
27 at paragraph 14:
1
2 Where the Rental Officer acts within the scope of his jurisdiction or the appeal
3 involves a question of fact, the standard is that of reasonableness. Where the issue
4 is one of law, jurisdiction or procedural fairness, the standard is that of
5 correctness.
6
7 The issues raised by the Applicant which
8 involve the conduct of the hearing are therefore
9 subject to the standard of correctness.
10 The materials and argument of the Applicant
11 appear to contain three complaints about how the
12 hearing was conducted. There are other
13 complaints in the Applicant's materials and
14 argument which relate to the history of the
15 matter and the Applicant's complaints about the
16 Respondent, which I will address later.
17 The first argument is that the Respondent
18 did not provide her with full disclosure at the
19 hearing, and this appears to be in relation to
20 notations on the Respondent's file system, which
21 were made by Janet Stephenson and read by Aya
22 Burshan at the hearing before the Rental Officer.
23 The notations summarize discussions between
24 Ms. Stephenson and the Applicant in November and
25 December 2014. The file notation was later
26 provided to the Rental Officer and is included in
27 the record at Tab 12.
1 This evidence was also submitted by the
2 Applicant at the hearing to the Rental Officer.
3 An excerpt of the transcript of the evidence of
4 the first hearing, which included a reference to
5 this evidence, is part of the record of the
6 Rental Officer under Tab 11, titled, "Contents of
7 Evidence for Rental Hearing Submitted By
8 Respondent at Hearing."
9 The Applicant was aware of this evidence
10 prior to the hearing, whether she had receipt of
11 the actual file notation or not. The same
12 evidence had been referred to at the first
13 hearing, and a transcript of the hearing had been
14 provided to the Applicant.
15 In my view, this provided the Applicant with
16 knowledge of what evidence the Respondent might
17 adduce at the hearing and was sufficient to
18 constitute disclosure to the Applicant.
19 The Applicant also argues that the
20 Respondent relied on the evidence of a witness
21 who was not present so that she was unable to
22 cross-examine that witness. This argument is in
23 relation to Ms. Burshan relying on evidence from
24 the first hearing, the testimony of Cameron
25 O'Keefe, who was apparently a witness to the
26 incident in question. The Applicant objected to
27 its admission at the hearing, and the Rental
1 Officer accepted the evidence, noting that it was
2 similar to an affidavit and had been made under
3 oath.
4 Section 75 of the Residential Tenancies Act
5 requires the Rental Officer to adopt the most
6 expeditious method in dealing with applications
7 and to follow the rules of natural justice. This
8 is consistent with the purpose of the Act, which
9 is:
10
11 ... to provide an expeditious, summary, cost-effective means to resolve
12 landlord-tenant disputes.
13
14 Inuvik Housing Authority v Kendi, 2005 NWTSC
15 46, at paragraph 22.
16 This gives the Rental Officer latitude in
17 how hearings are conducted. The rules of
18 evidence are not strictly enforced in rental
19 hearings. Lawyers are rarely involved in the
20 process and most parties represent themselves.
21 Landlords often have an employee represent them
22 at the hearing. Hearsay evidence is often
23 admitted, and the right to cross-examine is not
24 strictly required.
25 Where hearsay evidence plays a central role
26 or is the main evidence in a hearing, rules of
27 natural justice are going to often permit
1 cross-examination on that evidence.
2 At first glance, presenting evidence that
3 was adduced at the first hearing, which was
4 overturned on appeal in which the Applicant
5 appealed on the basis that she had not received
6 notice of the hearing, seems unfair and is not a
7 practice that should be recommended. However, in
8 this case, the evidence of Mr. O'Keefe simply
9 confirmed the evidence of Ms. Burshan and
10 Mr. Bies regarding the incident with the
11 Applicant. Ms. Burshan and Mr. Bies testified at
12 the hearing and were available for
13 cross-examination.
14 The decision of the Rental Officer regarding
15 this incident referred to the evidence of
16 Ms. Burshan and Mr. Bies. The Rental Officer
17 noted that Mr. O'Keefe was present during the
18 incident, but his conclusions do not rely upon
19 Mr. O'Keefe's evidence in coming to a conclusion.
20 Therefore, in the circumstances, permitting
21 cross-examination of Mr. O'Keefe was not
22 required.
23 The Applicant also argues that the Rental
24 Officer refused to accept her affidavit during
25 the hearing, and this appears to be contrary to
26 what occurred during the hearing. The Rental
27 Officer stated during the hearing when this issue
1 was brought up (at page 15):
2
3 Well [indistinct] if you have an affidavit, I'll certainly consider it today.
4
5 In addition to this, the Applicant also
6 testified and provided a number of documents to
7 the Rental Officer which appear in the record,
8 so, in the circumstances, I cannot conclude that
9 she was denied the opportunity to present
10 evidence.
11 The issue of bias or partiality of a
12 decision maker has been considered by this Court
13 and by the Supreme Court of Canada and the test
14 is well-established. The test to determine
15 whether a judge or a decision maker has a
16 reasonable apprehension of bias was stated in the
17 Committee for Justice and Liberty et al v
18 National Energy Board, [1978] 1 S.C.R. 369 and
19 cited in Wewaykum Indian Band v Canada, [2003] 2 20 S.C.R. 259, at 289.
21
22 ... the apprehension of bias must be a reasonable one, held by reasonable and
23 right minded persons, applying themselves to the question and obtaining thereon the
24 required information. In the words of the Court of Appeal, that test is, "what would
25 an informed person, viewing the matter realistically and practically - and having
26 thought the matter through - conclude. Would he think that it is more likely than
27 not that [the decision maker], whether consciously or unconsciously, would not
1 decide fairly." 2
3 The onus is on the person alleging bias, and
4 the threshold for finding real or perceived bias
5 is high. A real likelihood or probability of
6 bias must be shown and mere suspicion is not
7 enough.
8 There is also a presumption of regularity,
9 that a decision maker in the absence of evidence
10 to the contrary has acted properly and in
11 accordance with the law. The presumption is that
12 a decision maker will act fairly and impartially.
13 The Applicant argues that the Rental Officer
14 was good friends with Aya Burshan because: 1)
15 they shared personal, inside jokes after the
16 hearing; 2) they were in the room together with
17 Bob Bies prior to the hearing and were talking
18 and sharing stories prior to the hearing; and 3)
19 they are both employed by the Government of the
20 Northwest Territories.
21 The Applicant also argues that the Rental
22 Officer was not impartial because he made
23 comments about, "how he had been doing this for
24 years and that I should Google him," and he made
25 a comment about the Applicant should feel lucky
26 that she was chosen for a unit.
27 The Applicant also added that following the
1 hearing, the Rental Officer had expressed his
2 disgust when she asked to change her baby
3 following the hearing in the hearing room.
4 Dealing first with the comment that the
5 Applicant has referred to, during the hearing the
6 Rental Officer stated:
7
I know -- I know how to do it, okay?
8 If you -- you want, if you want to see how many times I've done it, go on the Internet
9 and see how many cases have been before me.
10
11 In reviewing the transcript of the hearing,
12 it is apparent that it was a challenging hearing.
13 Ms. Burshan, who appeared on behalf of the
14 Respondent, the Applicant and the Rental Officer
15 were the main participants in the hearing. Both
16 Ms. Burshan and the Applicant appeared to
17 repeatedly talk over each other and talk over the
18 Rental Officer, and cross-examination was more in
19 the form of an argument at times.
20 The Rental Officer, at different points, had
21 to chastise both the Applicant and Ms. Burshan.
22 At the point in the hearing when the Rental
23 Officer made the comment, it is not clear who the
24 Rental Officer was speaking to as immediately
25 before this, both the Applicant and Ms. Burshan
26 were speaking and interrupting each other and
27 interrupting the Rental Officer. This comment
1 suggests, perhaps, that by this point in the
2 hearing, the Rental Officer was losing patience
3 with Ms. Burshan and/or the Applicant. However,
4 I cannot conclude, in the circumstances, that the
5 comment demonstrates any bias or partiality.
6 The other points that the Applicant makes
7 reference to are not apparent on the record,
8 events that allegedly happened before the hearing
9 began and after it concluded. The only evidence
10 on this point is that of the Applicant, and there
11 is no corresponding evidence or explanation for
12 Ms. Burshan, Mr. Bies or the Rental Officer.
13 With respect to people being employed by the
14 Government of the Northwest Territories, the GNWT
15 is a large employer in this jurisdiction, and the
16 capital is Yellowknife, which means that there
17 are many offices and departments of the GNWT
18 here. It is possible that the GNWT is the
19 largest employer in the NWT and in Yellowknife.
20 Being employed by the same, large organization
21 without more cannot substantiate a claim of bias.
22 The conversation that allegedly occurred
23 between Ms. Burshan and Mr. Bies and the Rental
24 Officer involve sharing stories. That the Rental
25 Officer and representatives of an organization
26 who participate in rental hearings might have
27 some familiarity with each other and would talk
1 before or after a hearing is not surprising. It
2 is not clear what stories they might have been
3 sharing, or to what extent those stories might
4 reveal a friendship or other connection which
5 might establish a reasonable apprehension or
6 bias.
7 In some situations, particularly in a small
8 jurisdiction, a decision maker may become too
9 familiar with people or parties who appear before
10 them regularly. However, the evidence that has
11 been presented is not sufficient to establish a
12 friendship or a reasonable apprehension of bias.
13 The other points that the Applicant raised
14 were about the Rental Officer's treatment of her.
15 These were not witnessed by another individual.
16 The description of what occurred as well as the
17 comment alledgedly made by the Rental Officer
18 about the Applicant being lucky to get a unit are
19 subject to interpretation.
20 The recollection of them by the Applicant
21 may be coloured by her perception of what
22 occurred. They could be the result of a
23 misunderstanding. The Rental Officer noted in
24 his decision that the Applicant was easily
25 agitated by simple conflicts and
26 misunderstandings.
27 In reviewing the documents and transcripts
1 that constitute the record, that conclusion is
2 one that is reasonable. I am not certain if the
3 comments were made or if they occurred as
4 described by the Applicant, but I am not prepared
5 to conclude on the basis of them given the
6 standard required to establish a reasonable
7 apprehension of bias that the Rental Officer
8 acted partially in this matter.
9 In reviewing the transcript, the Rental
10 Officer attempted to explain his role and the
11 decision he had to make to the Applicant. He
12 asked her questions to ascertain her position,
13 and he intervened on her behalf on at least one
14 occasion when dealing with Ms. Burshan. His
15 decision, while granting the Respondent's
16 application, avoided making any overly negative
17 findings about the Applicant or her credibility.
18 Overall, the treatment of the Applicant by the
19 Rental Officer was reasonable.
20 I am not satisfied that the standard has
21 been met to establish that there was a reasonable
22 apprehension of bias on the part of the Rental
23 Officer.
24 At the hearing before the Rental Officer,
25 the Applicant referred to a number of things that
26 she had said occurred while she was a tenant of
27 the Respondent and a number of problems and
1 complaints that she had, some of which were
2 ongoing.
3 In the Applicant's materials, there are
4 other complaints which relate to the history of
5 the matter and the Applicant's complaints about
6 the Respondent. Those are not in issue before
7 me.
8 It is clear that the Applicant and the
9 Respondent have a history together, and the
10 Applicant is upset about a number of things which
11 occurred in the past, and some of which are still
12 ongoing.
13 The Applicant is also upset about the unit
14 she is living in. One of the items of relief she
15 sought in her pre-hearing brief was to have the
16 Yellowknife Housing Authority transfer her family
17 to a four-bedroom unit. This appeal is not about
18 that. This appeal is about the decision of the
19 Rental Officer. If the Applicant wants to pursue
20 her grievances against the Yellowknife Housing
21 Authority, then she is free to lodge her own
22 complaint with the Rental Officer.
23 In conclusion, for these reasons, the appeal
24 is dismissed.
25 Thank you. Mr. McNiven, if you could submit
26 an order to that effect.
27 MR. MCNIVEN: Yes, I will.
1 THE COURT: Okay. All right.
2 MS. ST. CROIX: Thank you.
3 THE COURT: All right. Thank you. We
4 will adjourn.
5 _____________________________________________________
6 PROCEEDINGS CONCLUDED
7 _____________________________________________________
8
9
10 CERTIFICATE OF TRANSCRIPT
11
12 I, the undersigned, hereby certify that the
13 foregoing transcribed pages are a complete and
14 accurate transcript of the digitally recorded
15 proceedings taken herein to the best of my skill and
16 ability.
17 Dated at the City of Sault Ste. Marie, Province
18 of Ontario, this 9th day of November, 2018. 19
20 Certified Pursuant to Rule 723
21 Of the Rules of Court 22
23
24
25
26 Kerri Francella
27 Court Transcriber