Nunavut court overrules public housing decision, avoiding precedent

A Nunavut appeals court has ruled against Donna Tatty’s right to live in another community and remain on the social housing waitlist in Rankin Inlet. But the ruling affects only clients going forward. Tatty will be allowed to remain in her Rankin Inlet home. (FILE PHOTO)

A judge’s 2015 intervention reinstating a Rankin Inlet single mother back onto her community’s public housing waitlist, after she moved away, has been overruled, following a successful appeal by the Rankin Inlet Housing Association.

Nunavut Justice Andrew Mahar originally ruled in favour of allowing Donna Tatty—a single mom with two small children at the time—to be returned onto the RIHA’s housing waitlist after she relocated to Churchill, Manitoba in 2013.

RIHA rules prohibit someone on the waitlist from residing in another community—and they must live in Rankin Inlet for at least twelve consecutive months before they are eligible for housing.

After an internal review and subsequent appeal by Tatty, the board deemed she had broken the rules and removed her from the list—a ruling she challenged and beat.

But now an appeals tribunal says Mahar’s decision to reinstate Tatty in the queue was wrong, that he overstepped his authority and that he didn’t take into account the RIHA’s ability to manage it own policies.

“[Mahar] made his own finding of fact on that issue without exploring first whether the conclusion the [RIHA] board reached was intelligible, transparent and fell within a range of possible, acceptable outcomes,” Justices Karan Shaner, Shannon Smallwood and Sheila Greckol wrote in a joint decision, dated June 13.

“He erred in his application of the standard of review.”

While the decision effectively upends the last two years of Tatty’s residence in Rankin Inlet—she has since been given a public housing unit—the RIHA’s lawyer, Jon Rossall, suggested in May that the housing authority would not seek reprisals against Tatty and that she would remain in her home.

The point of the appeal, Rossall argued to the judges at the time, was to remove a potentially dangerous legal loophole that future applicants could use as a precedent.

The appeals judges apparently agreed, adding in their decision that Mahar’s ruling could “lead to an absurd result where non-residents of Rankin Inlet would hold spots on the waiting list and would be entitled housing before individuals in need of housing who are actually residing in Rankin Inlet.”

Tatty’s lawyer, James Morton, argued during the appeal hearing that Tatty relocated to Churchill on a temporary basis and her decision was “not voluntary” due to the living conditions she and her children faced by remaining in Rankin Inlet.

Tatty’s roots were also entirely within the community, and no employment or social prospects awaited her in Manitoba, Morton added.

Mahar had said in his original decision that “it would be tragically ironic if the very people in most need of public housing were to lose their access to [the list] because of the dramatic steps they may take to find a place to live while they languished on a waiting list.”

The appeals judges argued the housing association acted within the scope of its own bylaws to define what they considered a resident of Rankin Inlet.

“[The RIHA] was called upon to make a factual finding on residency and to interpret and apply its bylaws and policies in the context of administering a public housing program,” they wrote in the decision.

No damages were awarded to the RIHA by the appeal tribunal.