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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

 You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.