Date: 20100408
Docket: T-498-10
Citation: 2010
FC 377
Ottawa, Ontario, April 8, 2010
PRESENT: The Honourable Madam Justice Mactavish
BETWEEN:
ROBIN
ROBERTS
Applicant
and
ROSEAU RIVER ANISHINABE FIRST NATION
as represented by CHIEF AND COUNCIL and
THE GINEW HOUSING AUTHORITY
INCORPORATED
Respondents
REASONS FOR ORDER AND ORDER
[1]
Robin Roberts is a member of the Roseau River Anishinabe First Nation,
who is currently residing in Housing Unit B-96 (“the Unit”) in Ginew, Manitoba,
a community on the Roseau River First Nation Reserve. She seeks an interim and
interlocutory injunction preventing the Roseau River Anishinabe First Nation
and the Ginew Housing Authority Incorporated (“GHAI”) from evicting her and her
family from the Unit. She also seeks a mandatory order compelling the
resumption of electrical service to the Unit. Ms. Roberts seeks such an order
pending the hearing of her application to judicially review a purported
decision of the GHAI demanding that she leave the Unit by March 31, 2010.
[2]
For the reasons that follow, I have concluded that Ms. Roberts has not
demonstrated that she will suffer irreparable harm between now and the time
that her application for judicial review is heard if the injunction is not granted.
She has also not persuaded me that the balance of convenience favours the
granting of the injunction. As a consequence, her motion will be dismissed.
Background
[3]
Ms. Roberts is a member of an extended family, many of whom reside on
the Reserve. Because a number of the individuals involved in this matter share
the Roberts surname, I shall refer to each of them by their first names in
these reasons for the sake of clarity.
[4]
Until October of 2009, Robin resided in British Columbia. Following the
death of her brother Floyd, Robin returned to the Reserve to attend his
funeral. On her arrival in Ginew, Robin stayed with her sister Lynda, who was
then living in the Unit.
[5]
Lynda began living in the Unit in 2003. She had originally entered into
a one-year Tenancy Agreement with either the GHAI or with another entity known
as the Roseau River Housing Authority. When the term of the original agreement
expired, Lynda remained in possession of the property on a month-to-month
basis, and was never asked to sign another Tenancy Agreement.
[6]
Following Floyd’s death, a decision was made by the Roberts family at a
meeting held on October 25, 2009, that Lynda would move into Floyd’s home,
which was evidently somewhat larger than the Unit. It was also decided by the
family that Robin would remain on the Reserve, and would live in the Unit.
[7]
One of the central issues in this case is whether Lynda had the
unqualified ability to assign her right to occupy the Unit to Robin, or whether
the consent of the GHAI was required.
[8]
Lynda states in her affidavit that she had “seen a practice develop
whereby people transfer houses between family members”. As a consequence,
Lynda states that she did not anticipate that there would be any issue with
respect to the transfer of the Unit to Robin. Lynda’s affidavit does not specifically
address the question of whether consent to such transfers is required.
[9]
The respondents deny that any such custom or practice exists.
[10]
Neither side has produced a copy of Lynda’s original Tenancy Agreement
which would establish the terms under which she occupied the Unit. However, according
to the evidence of Ed Hayden, who is the Director of both the GHAI and the Roseau
River Housing Authority, that Agreement was in the Housing Authority’s standard
form. There is a copy of the standard form Tenancy Agreement in the record.
This Agreement contains a provision stating that “The Tenants should not
reassign or sublet the premises without permission form the GHA[I]”.
[11]
Mr. Hayden further states that the Director of Housing maintains a list
of those individuals and families waiting for housing. There are currently
some 17 families and 14 individuals on the list, some of whom have been waiting
for as much as three years to be assigned housing.
[12]
Mr. Hayden explains that when a unit becomes available, the unit is
assigned to the name on the list which “comes closest to fitting the size of
the unit”, with families with children being given priority.
[13]
What is not disputed is that on October 25, 2009, Lynda wrote to Mr.
Hayden advising him that she would be moving into Floyd’s unit, effective immediately.
It is noteworthy that Lynda’s letter does not purport to simply advise Mr.
Hayden of the fact that she had assigned her right to occupy the Unit to her
sister Robin. Rather, Lynda’s letter seeks permission to have Robin move into
the Unit.
[14]
In this regard, the letter states:
Please, also,
accept my letter as my request to allow my sister, Rob[i]n Roberts to move in to
Lot B-96. Rob[i]n is staying with me right now, however her daughter & grandchildren
indicated they would live with Rob[i]n, so the Roberts family support this
request and seek your support and consideration.
[15]
Lynda states in her affidavit that although her letter seeks the GHAI’s
approval of the transfer, she requested such authorization merely “out of
courtesy”.
[16]
By letter dated November 9, 2009, Mr. Hayden advised Robin that she
would have to vacate the Unit by November 12, 2009, as the Unit had previously
been assigned to Dana Roberts. Dana is Robin’s and Lynda’s niece. She had
been on the waiting list for some time, waiting for a housing unit to become
available. According to Mr. Hayden, Dana had signed a Tenancy Agreement prior
to the receipt of Lynda’s October 25 letter.
[17]
The respondents have produced a copy the Tenancy Agreement entered into
between Dana and the GHAI. Curiously, the document is dated October 23, 2009 –
two days before Lynda’s letter was sent to Mr. Hayden seeking approval
to have Robin live in the Unit. The respondents suggest that Lynda may have
verbally advised Mr. Hayden of her intention to move into Floyd’s home at some
point prior to October 25, but there is no evidence before the Court to support
this suggestion.
[18]
Lynda and Robin were surprised by the fact that Dana had entered into
this Tenancy Agreement as Dana had been present at the October 25 meeting of
the Roberts family, and had not objected to the decision to have Robin move
into the Unit with her family, nor had Dana suggested that she had any interest
in the property.
[19]
Mr. Hayden’s affidavit states that Dana had initially agreed to allow
Robin to stay in the Unit temporarily, in order to give her time to find
somewhere else to live. However, on November 9, 2009, Dana advised Mr. Hayden
that she wanted to move into the Unit. Robin did not comply with Mr. Hayden’s
request to vacate the premises by November 12, 2009, and continued to live in
the Unit.
[20]
According to Mr. Hayden’s affidavit, Robin advised him that she needed
more time to find a place to stay in the nearby town of Altona. As Robin had
just lost a second brother, and given that it was wintertime, Dana agreed to
give Robin more time to find another home.
[21]
Some time in December of 2009 or January of 2010, Robin had a chance
encounter with Mr. Hayden outside the offices of the Chief and Council on the
Roseau River First Nation Reserve. Mr. Hayden advised Robin that she had two
weeks to leave the unit. Robin acknowledges that she agreed to look for
alternate accommodations, but says that she did not agree to leave. It is
noteworthy that there is no suggestion in Robin’s affidavit that she told Mr.
Hayden that in her view, she had a right to live in the Unit.
[22]
Robin’s affidavit goes on to say that she looked for another place to
live, but could not find suitable alternate housing.
[23]
As Robin puts it in her affidavit “The two weeks Mr. Hayden spoke of
came and went and no one took steps to remove me from my House. As I was
unable to find alternate accommodations, I decided to remain in my House.”
[24]
On March 18, 2010, Mr. Hayden again wrote to Robin, observing that she
had been given ample time to find alternate accommodations. While Dana had
agreed to allow Robin to stay in the Unit while Robin tried to find somewhere
else to live, Dana now wanted to move into the Unit with her family.
Consequently, Mr. Hayden advised Robin that she had to vacate the Unit.
[25]
Mr. Hayden’s March 18 letter goes on to state that:
Hydro must
have notice and billing that matches the tenancy agreement; Linda cannot assume
two residences for billing purposes. Therefore, Hydro will shut off service to
B96 until Dana can move in and assume residence. You will be given until March
31st to remove belongings. Hydro will shut off service on April 1st.
[26]
Mr. Hayden’s March 18 letter prompted action on Robin’s behalf, and on
March 30, 2010, she retained counsel. On April 1, 2010, counsel filed the
motion for injunctive relief, seeking to have the matter heard on an ex
parte basis. Justice Tremblay-Lamer directed that the respondents be provided
with notice of the motion, and the motion was heard by me on an urgent basis on
April 7, 2010.
[27]
In an unsworn letter to the Court, Robin advises that on the afternoon
of April 1, 2010, a representative of Manitoba Hydro attended at the Unit
accompanied by a member of the Tribal Police. The two individuals went to the
side of the Unit and shut off the power. While such information should
ordinarily be put before the Court in affidavit form, I do not understand
counsel for the respondents to dispute that the power to the Unit was in fact
shut off on April 1.
Analysis
[28]
The parties agree that in determining whether Robin is entitled to injunctive
relief, the test to be applied is that established by the Supreme Court of
Canada in RJR-MacDonald Inc. v. Canada (Attorney General), [1994] 1
S.C.R. 311.
[29]
That is, Robin must establish:
1) That there is a serious issue
to be tried in the underlying application for judicial review;
2) That irreparable harm will
result if the injunction is not granted; and
3) That the balance of
convenience favours the granting of the injunction.
[30]
Given that the test is conjunctive, Robin has to satisfy all three
elements of the test before she will be entitled to relief.
Serious Issue
[31]
In RJR-MacDonald, the Supreme Court of Canada observed that the
threshold for establishing the existence of a serious issue is a low one. In
this regard, the Supreme Court noted that:
Once
satisfied that the application is neither vexatious nor frivolous, the motions
judge should proceed to consider the second and third tests, even if of the
opinion that the plaintiff is unlikely to succeed at trial. A prolonged
examination of the merits is generally neither necessary nor desirable. (at
para. 50)
[32]
Robin has identified a number of issues each of which she says meet the
low threshold necessary to satisfy the “serious issue” component of the RJR-MacDonald
test. These include several procedural fairness arguments, as well as the
contention that the purported decision of the GHAI was a nullity, as the GHAI
had been dissolved on July 17, 2009, and thus no longer exists.
[33]
For the purposes of this motion, I am prepared to assume, without
deciding, that the underlying action raises one or more issues that satisfy the
“serious issue” branch of the RJR-MacDonald test.
Irreparable Harm
[34]
Injunctive relief should only be granted in cases where it can be
demonstrated that irreparable harm will occur between the date of the hearing
of the motion for interim relief and the date upon which the underlying application
for judicial review is heard, if the injunction is not granted: Lake
Petitcodiac Preservation Assn. Inc. v. Canada (Minister of the Environment) (1998),
149 F.T.R. 218, 81 A.C.W.S. (3d) 88 at para. 23.
[35]
Irreparable
harm is harm that cannot be quantified in monetary terms, or which cannot be
cured by an award of damages: RJR-MacDonald at para. 59.
[36]
The burden is on the party seeking the injunction to adduce clear and
non-speculative evidence that irreparable harm will follow if his or her motion
is denied: see, for example, Aventis Pharma S.A. v. Novopharm Ltd., 2005
FC 815, 140 A.C.W.S. (3d) 163 at para.59,
aff'd 2005 FCA 390, 44 C.P.R. (4th) 326.
[37]
That is, it will not be enough for a party seeking a stay to show
that irreparable harm may arguably result if the stay is not granted,
and allegations of harm that are merely hypothetical will not suffice. Rather,
the burden is on the party seeking the stay to show that irreparable harm will
result: see International Longshore and Warehouse Union, Canada
v. Canada (Attorney General), 2008
FCA 3, 168 A.C.W.S. (3d) 315 at paras. 22-25, per Chief Justice Richard.
[38]
Robin’s affidavit states that she and her family will have nowhere to go
if the injunction is not granted. She goes on to note that she is unemployed,
and has applied for social assistance. She further deposes that if she does
not receive social assistance, then her ability to provide the essentials for
her family will become difficult if not impossible. However, in her unsworn
letter to the Court, Robin indicates that her application for social assistance
has been approved and that she is now receiving benefits.
[39]
Robin’s evidence on the issue of irreparable harm is most
unsatisfactory. She makes the bald assertion that she looked for alternate
accommodation after her meeting with Mr. Hayden in December of 2009 or January
of 2010, without success. However, she has provided absolutely no detail regarding
where she looked or what she did to try to find another place to live.
[40]
While there does appear to be a housing shortage on the Reserve, as demonstrated
by the long waits for housing there, there is no evidence before the Court of
any concrete steps that Robin has taken to find temporary accommodation in the
nearby town of Altona, or elsewhere. Living in Altona was evidently an
acceptable alternative for Robin, as she told Mr. Hayden in November of 2009
that she was looking for a place there.
[41]
Moreover, Robin has extended family on the Reserve. Indeed, she stayed
with her sister Lynda in the Unit when she arrived on the Reserve in October of
2009. We know that Lynda is now living in a bigger home, having taken over
Floyd’s unit. The applicant has not explained why it is that she would not be
able to stay with Lynda or any of her other relatives while this matter is
being resolved.
[42]
As a consequence, the evidence adduced by Robin to show that she will
suffer irreparable harm between now and the time that her application for
judicial review is heard falls well short of the “clear and non-speculative”
threshold.
Balance of Convenience
[43]
The test for an injunction is conjunctive. Given that Robin has failed
to satisfy the irreparable harm element of the test, it is technically not
necessary to address the issue of the balance of convenience. However, Robin
has also failed to satisfy me that the balance of convenience favours the
granting of the injunction.
[44]
I would start by observing that Dana Roberts and her family have been
grossly inconvenienced by what has transpired. After giving Robin some time to
find another place to live, Dana’s generosity was repaid by Robin’s ongoing
refusal to leave the Unit. Dana and her family have evidently had to move from
place to place over the last few months. Most recently, the family has been
staying with relatives, with several family members having to sleep in one bed
because of space constraints. Dana’s relatives are now pressing her to find
somewhere else to live.
[45]
That said, Dana Roberts is not a party to these proceedings, and thus
her circumstances are not relevant in identifying where the balance of
convenience lies as between the parties to the application.
[46]
It is apparent from the evidence of Mr. Hayden that there is a process that
is followed in relation to the allocation of scarce housing resources on the
Roseau River First Nation Reserve. Those who play by the rules and take their
place on the waiting list may have to wait in excess of three years to receive
a housing unit.
[47]
After living for some time in British Columbia, Robin returned to the Reserve
in October of 2009, and shortly thereafter took over her sister’s housing
Unit. She has effectively “jumped the queue”. Not only is this very unfair to
those individuals who have played by the rules, it also undermines the
integrity of the housing allocation process on the Roseau River First Nation
Reserve.
[48]
In the circumstances, I find that the balance of convenience favours the
respondents. Accordingly, the motion is dismissed.
Suspension of the Order
[49]
A Court order will ordinarily take effect immediately. However, the
respondents have agreed to give Robin and her family seven days to vacate the
Unit, in the event that her request for an injunction is refused. In response
to questions from the Court, counsel for the respondents has also undertaken to
see that electricity is restored to the Unit during this seven day period.
Case Management
[50]
Counsel for the respondents asks that this matter continue as a
specially managed proceeding. I do not understand Robin to object to this
request, and an order will go to this effect.
Costs
[51]
In light of Robin’s impecuniosity, the respondents are not seeking
costs, and none are awarded.
ORDER
THIS COURT ORDERS
AND ADJUDGES that:
1. This
matter shall be continued as a specially managed proceeding.
2. The
motion for an injunction is dismissed, without costs.
3. Robin Roberts shall vacate Housing Unit B-96 on the Roseau
River First Nation Reserve by 5 p.m. on Thursday, April 15, 2010.
4. In accordance with counsel’s undertaking, the respondents
shall ensure that electrical power is restored to the Unit within 24 hours of
this order being sent to counsel for the respondents. No further efforts are
to be made by the respondents to cut off the electricity or any other services to
the Unit until after 5 p.m. on Thursday, April 15, 2010.
“Anne
Mactavish”
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