Introduction
At the beginning of its second decade, the Toronto Community Housing Corporation (TCHC) reformed its internal structure and adopted a novel institutional mechanism: the Office of the Commissioner for Housing Equity, an independent accountability mechanism for procedural fairness in rent-arrears evictions. At the time, that was the only such office in North America, and possibly in the world. This essay examines how and why the TCHC adopted that mechanism.
TCHC always had a legal obligation to conduct evictions “fairly.”Footnote 1 No judgment or statute intervened to require TCHC to revisit its received understanding of fairness. Further, the Board members themselves—seven citizens, four members of Toronto City Council and two TCHC tenantsFootnote 2—were relatively ordinary Torontonians of the early 2000s.Footnote 3 Not, in other words, the group that would necessarily have been expected to generate novel institutional reforms. Yet, they did.
The story that I recount shows that the reform was a contingent institutional response to tragic administrative failings. Several individuals shaped the reform, subject to political and economic constraints. The story of how they did so is interesting in its own right. It is a tragic vignette. But it also has broader relevance for administrative law scholars and for others who are interested in the relationship between law and public policy.
Contemporary administrative law scholarship has taken an inward-looking turn.Footnote 4 There is renewed interest in the internal—as opposed to external—law of administration; rather than a near-exclusive focus on judicial and legislative control of administrative action, now scholars are also examining institutional structures, procedural rules and other internal aspects of administrative bodies.Footnote 5 It is a promising direction for those who wish to understand how law, broadly construed, can contribute to improving on-the-ground public administration and policy. It may bring administrative law scholarship into a more productive conversation with law and society approaches.
But it is not yet clear that administrative law scholars will stay the course. One of the currents that could pull the field back towards its external orientation is the relative obscurity of internal administrative law reform. Internal reforms are often much less visible than changes imposed by judges or legislatures.
It is comparatively easy for administrative law students and scholars to imagine how judicial controls on administration might change.Footnote 6 Law students and legal scholars are familiar with many examples.Footnote 7 Whatever one may think of the proposals, it is easy to see how the courts could recognize new aspects of the duty of fairness or reformulate other external aspects of judge-made administrative law.Footnote 8 So, too, for legislative constraints. Students and scholars can envision how Parliament and provincial legislatures might reorganize tribunals systems or impose other limits on administrative powers.Footnote 9 Reform-minded law students and scholars are naturally attracted to those avenues, probably in part because stories about those avenues are so often told in legal scholarship and education.
Whether the turn towards internal administrative law proves durable may depend on building up a reservoir of similar stories about internal law reform, including when it is not prompted by the usual external suspects. Internal reforms need to be made visible to remain of interest. To support the internal turn, this article therefore presents a short vignette that captures one such reform process.
To do so, I recount the history of TCHC’s eviction-prevention policies when tenants fall behind on their rent, influenced by the insights that can be glimpsed through a historical-institutionalist lens. That lens is well known to scholars of the welfare state, for whom it has become a predominant perspective.Footnote 10 It has not been as influential among legal historians.Footnote 11
Historical institutionalism is not one theory or method.Footnote 12 Broadly speaking, it is a scholarly tradition in the social sciences—in political science, economics, sociology and other settings—focused on explaining why particular outcomes occurred in specific historical contexts.Footnote 13 It emerged in the last decades of the twentieth century in reaction to the predominance of behaviouralist and grand-theoretical approaches.Footnote 14 Among the early and important claims in the tradition was that policy outcomes are contingent products of institutional histories, in the sense that reforms and proposals in one period shape what is possible in the next.Footnote 15 Inspired by that claim (which of course is not unique to historical institutionalism), my account accordingly reconstructs the sequence of reform projects and the events—several tragic and several bureaucratic—to which those projects responded. This approach provides one way to avoid some of the perils of evolutionary functionalist accounts that were once commonplace in legal history;Footnote 16 most usefully, historical institutionalism foregrounds the exploration of “why and how change occurred in a particular way in a particular place.”Footnote 17
Contemporary historical institutionalism, however, has built on the early insights of the tradition. Current scholarship is often concerned with two additional and interrelated issues: first, explaining institutional change; second, uncovering the role of ideas in politics and history.Footnote 18 These questions have brought to the fore the role of individual actors—and the ideas they hold.Footnote 19 By bringing individuals into the frame alongside institutional rules, historical institutionalism provides one lens through which to see a middle ground between great man theories of history (in which a few exceptional individuals are determinative) and the irresistible tide of impersonal economic forces (in which individuals have no agency at all).Footnote 20
Historical institutionalism thus resonates with narrative approaches that have been employed to great effect by legal historians: a focal point for both approaches can be the role of individuals in legal or institutional change.Footnote 21 But, while individuals and institutions are present in each setting, historical institutionalism often casts institutional frameworks as a variable of primary interest, within which individuals can act as an explanatory factor. So, historical institutionalism can be something of an inversion of narrative. This inversion can help to address the main critique advanced against narrative approaches: by conditioning the selection of individual stories on their implication in institutional reforms, the potential for arbitrary selection is (partially) mitigated.Footnote 22
My account of the institutional reforms at TCHC takes inspiration from these insights. In particular, this article examines whether there was a meaningful role played by individual actors within the governing institutional frameworks, including individuals with distinctively legal roles. Did the people matter or were they mere passengers adrift in the political and economic currents of their time? Those are natural concerns for law students and scholars who have not been exposed to other stories of internal administrative law reform: if all internal reforms are driven by immutable political and economic constraints, then lawyers may be understandably discouraged about their capacity to make a meaningful contribution. But, as I will attempt to show in the chronological exposition that follows, the individuals and their ideas did make a difference: several people profoundly shaped the policy outcomes that TCHC reached in 2014. In some cases, lawyers helped. None of them could entirely resist the political and economic tides of the historical moment they sailed upon, but they did impact the reform process.
The story that I present will be unsurprising to scholars who specialize in the history of public administration, and public housing in particular. But it is useful for law students and scholars, many of whom are only beginning to appreciate the full significance of internal administrative reforms for subjects that are of fundamental concern in public law, such as administrative fairness. The vignette shows one way that internal reforms of great significance—indeed, in matters of life and death—can sometimes proceed without the intervention of case law or legislation. I hope that it will, in conjunction with other stories, help administrative law students and scholars to imagine how they might contribute to other internal administrative law-reform projects. Appropriately, the people who are most impacted will often lead those projects (as in this story), but lawyers may still have a supporting role to play.
The setting: Ontario public housing pre-2002
During the 1990s, Ontario’s and Canada’s governments withdrew from housing policy; responsibility was “downloaded” to municipalities.Footnote 23 Funding did not increase commensurately with the enlarged role of cities.Footnote 24 At the same time, housing needs were high.Footnote 25
By 2000, Toronto had several housing agencies attempting to address those needs. As downloading progressed, the agencies were consolidated into TCHC. The corporation thus became the largest public housing agency in Canada—and the second-largest in North America.Footnote 26 When it began operating, TCHC housed around 6 percent of the population of Toronto.Footnote 27 Many tenants were elderly, disabled or struggling with their mental health.Footnote 28 The vast majority were living in poverty.Footnote 29
TCHC exerted significant control over the lives of its vulnerable tenants. In many respects, this went well beyond a private landlord–tenant relationship. TCHC had, for instance, a large private constabulary force, the sole role of which was to police TCHC properties. Yet, other aspects of TCHC tenancies were strikingly similar to those of private contexts: people living at TCHC were, like private tenants, subject to the Tenant Protection Act (1997).Footnote 30 They could be evicted when they fell into rent arrears. But many low-income or otherwise vulnerable tenants who fell behind on rent had nowhere else to go; other housing was out of reach.Footnote 31
⁂
With the stage set, we can now begin to follow the evolutions in TCHC’s policies. To inform this vignette, I have reviewed all of the archived documents produced for the TCHC Board of Directors between 2002 and 2014. This archive contains meeting minutes on most matters that the Board considered, as well as the detailed reports and recommendations that informed decisions.Footnote 32
Through their decisions in those settings, the Board was making internal administrative law in the sense that contemporary administrative law scholars understand that term. For instance, Professors Metzger and Stack have written that internal administrative law “includes the organizational forms agencies adopt to govern their own operations […] [which can encompass] oversight and review structures.”Footnote 33 That understanding also resonates with some legal pluralists’ understanding of law.Footnote 34
I do not intend to enter the deeper jurisprudential waters in which the concept of law is debated. Swimming closer to shore is of little consequence in this setting, because there are good reasons for lawyers to be interested in “internal administrative law” even if it does not fit within the best jurisprudential understandings of “law.” That is because, as the story below will show, lawyers are often involved in reforming internal administrative law. Lawyers’ distinctive modes of working with language will often allow them to make worthwhile contributions to internal administrative law, even if some would not see the matters they are working on as straightforwardly legal.Footnote 35
I acknowledge at the outset that the policies the Board adopted were not always completely implemented. The Board’s archive speaks mostly to when and how particular reforms made it on the Board’s “legislative agenda”—not whether the reforms succeeded.Footnote 36 Irrespective of whether they succeeded, their legislative agenda is itself of interest. Nevertheless, I have not ignored enforcement. To examine those issues, however, it was often necessary to look outside the Board’s archive. Thus, I will also point to an eclectic set of additional sources, including City records, case law and news reporting. Taken together, these sources are a rich record through which to interpret the effectiveness of TCHC’s early policies and the events that drove reforms.
A period of invisibility: 2002–2009
In TCHC’s first years, policies to promote fairness in eviction decisions were not—for the most part—on the agenda. Eventually, the human costs of that period would become apparent. But the fact that it occurred at all is to some extent surprising, because City Council had required TCHC to implement a policy designed to “reduce evictions for non-payment of rent.”Footnote 37
On 30 September 2002, the Board did so.Footnote 38 The policy they adopted specified a few education, communication and intervention strategies. Among these was a requirement for “direct” contact with a tenant before eviction—but “direct” was not defined. Quantitative indicators were also supposed to be developed, to permit monitoring—but none were specified. The policy was skeletal; detailed guidelines were left to be drafted later.Footnote 39 But the Board did not follow up in the recorded aspects of their meetings. Thus, once City Council’s directive had notionally been satisfied in 2002, for more than half a decade, the Board paid no formal attention to fairness in evictions—even when tenants pleaded for more attention to be devoted to it.Footnote 40
The shock: 2009–2010
The crisis that came to a head in 2009 was set in motion when, on 28 May 2008, TCHC evicted an 81-year-old man named Al Gosling.Footnote 41 By that point, Mr Gosling had lived in a TCHC building, benefitting from a rent subsidy programme, for more than two decades.Footnote 42 But, in 2008, he did not fill out the required annual-income declaration.Footnote 43 Nevertheless, it is clear that Mr Gosling remained eligible for subsidized rent: his income had not changed.Footnote 44 Yet, TCHC sought an eviction order. At the eviction hearing before the Landlord Tenant Board, Mr Gosling claimed that he had retained a lawyer to represent him.Footnote 45 Unfortunately, that person did not show up at the hearing.
So, without legal counsel present, the Landlord Tenant Board granted the order to evict, but stayed the application of the order, so Mr Gosling could appeal.Footnote 46 When the stay expired, no action had been taken. The eviction order became enforceable. TCHC enforced it by changing Mr Gosling’s locks one afternoon while he was out. He had nowhere to go. He seems to have lived in a stairwell for several days, until he was so weak that police took him to a hospital.Footnote 47 The hospital sent him to a homeless shelter.Footnote 48 While there, he caught an infection.Footnote 49 By September 2008, Mr Gosling was living in a hospital.Footnote 50
It is not clear exactly how, but Joe Fiorito—a long-time Toronto Star columnist—heard of Mr Gosling’s plight. On 18 September 2009, Mr Fiorito published a column about Mr Gosling’s treatment. Years later, when asked why he had written about Mr Gosling, he said: “because it could have been my old man. Quite frankly, it could have been me.”Footnote 51 Mr Fiorito seems to have felt enormous compassion for Mr Gosling. Employing his distinctive writing style (he was also a poet), Mr Fiorito channeled that compassion into a sharp critique of Mr Gosling’s treatment.
The Board, or TCHC staff, seem to have received the message: within a month, Mr Fiorito was reporting that TCHC staff were expressing a willingness to let Mr Gosling return.Footnote 52 TCHC staff may even have visited the hospital.Footnote 53 But Mr Gosling’s infection worsened. He was dead by 11 October 2009.Footnote 54
The Board’s archive does not record how they heard of Mr Gosling’s passing. This is unsurprising: when they considered issues relating to an identifiable individual, meetings moved in camera. It is clear, however, that the community response to Mr Gosling’s death was significant.Footnote 55 It is also clear that the Board noticed: mere days after Mr Gosling died, the Board asked the former chief justice of the Ontario Superior Court of Justice, Patrick LeSage, to conduct a review of the circumstances leading to Mr Gosling’s death.Footnote 56
Scholars have noted the Canadian (and broader) tendency for public inquiries to draw heavily on the legal profession, as they are often led by judges and staffed by lawyers.Footnote 57 They are one place where lawyers use their expertise to contribute to internal administrative law reforms. For this particular inquiry, the most obvious reason why Mr LeSage might have been selected rather than another eminent former judge is that the Board Chair had participated in a past inquiry led by Mr LeSage.Footnote 58 Whatever the reason, his remit was broad: the Board asked him to propose “any policies or procedures” that might help prevent similar evictions.Footnote 59
So, in October 2009, policies to promote fairness in evictions were—for the first time since the founding of TCHC—firmly on the agenda. The Board did not come to focus on fairness in evictions because of changes in broader social consciousness, or even because of external legal change. Instead, it was the perceived necessity to respond to a tragic death, and Mr Fiorito and others’ sharp critiques.
Records on how Mr LeSage and his legal and policy staff conducted the inquiry are scarce: extensive steps were taken to preserve the anonymity of tenants who participated in the review.Footnote 60 For that reason, there are—for the most part—no public records of who said what. One telling exchange from late December 2009, however, is recorded in reporting from Mr Fiorito:
A woman stood up and said to the judge,
“We need an ombudsman. Would you like to volunteer, sir?”
“No, no,” said the judge.
“Ha, ha,” said the people.Footnote 61
That TCHC tenant seems to have proposed what became the signature initiative that Mr LeSage’s review recommended: an independent office to monitor whether the required processes had been followed in the lead-up to an eviction of a tenant. In the final report, the independent office came to be called the Office of the Commissioner of Housing Equity, or OCHE. The report said that this new office would “ensure TCHC staff have satisfied all prerequisites prior to an eviction matter proceeding to the Landlord and Tenant Board.”Footnote 62 The focus was to be on ensuring that the existing policies of TCHC—which seemed to have been so woefully unenforced in Mr Gosling’s case—were always enforced. The OCHE would accordingly focus on ensuring face-to-face communication, pushing TCHC to engage in mediation efforts and connecting the tenant with community supports.Footnote 63 There is a clear resonance with the remit of ombudspersons in other public law settings, where they provide an important source of independent scrutiny for administrative processes and decisions.Footnote 64
In almost every section, the LeSage Report documents other housing agencies that had already successfully implemented the recommended policy prescriptions. With respect to the OCHE, Mr LeSage and his staff seem not to have been aware of any other similar models. Indeed, it seems that the proposal for the OCHE—an independent evictions process accountability office within a public housing authority—was the first of its kind, in North America and probably the world.Footnote 65 For that reason, it is not obvious where this divergent idea might have come from. The only explanation for which there is any evidence in the public record is that the passing—and maybe half-joking—suggestion from the tenant landed on fertile soil: Mr LeSage had been a trial judge, enforcing proper procedure in hundreds of high-stakes criminal trials.Footnote 66 His professional background may thus have inculcated in him a significant degree of faith in the utility of independent arbiters of process.Footnote 67 A sole-purpose ombudsman-style role may have corresponded well with a preexisting commitment to the notion that justice can be meaningfully advanced through the “neutral” adjudication of compliance with procedural norms.
After receiving the Report, TCHC staff presented an “Implementation Plan” to the Board in August 2010. The covering letter from the CEO and the attached plan were, in total, twenty-two pages long: only 13 percent the length of the LeSage Report. The plan said that TCHC would require face-to-face contact with tenants before evictingFootnote 68 and that they would train staff on eviction-prevention policies.Footnote 69 But the OCHE did not appear. This was a notable omission, because public commentary on the LeSage Report focused almost exclusively on the OCHE proposal.Footnote 70
Unusually, fourteen people appeared before the Board in August 2010 to give deputations on the “Implementation Plan.” (Most meetings during this period had one or two deputations at the most.) After hearing these comments from tenants and housing advocates, the Board seems to have recognized the lack of specifics in the plan: rather than accepting the report as an “Implementation Plan,” they renamed it a “Directional Plan” and required the CEO to do more.Footnote 71 And the Board pushed TCHC staff to begin reporting monthly on quantitative indicators to measure eviction-prevention efforts.Footnote 72 This was an unusual step: other governance indicators were reported to the Board on a quarterly or annual basis. In August 2010, the Board was demonstrating a newfound seriousness of purpose.
In September 2010, no meeting was scheduled. This was not unusual: the Board generally met every one or two months, often building in time off during the late summer and early autumn. In October 2010, a meeting was scheduled. But, before it could take place, a new crisis intervened.
New distraction: 2010–2013
One of the large high-rise buildings in the TCHC portfolio was 200 Wellesley Street East. Conditions in many of the apartments had prompted concerns from social welfare agencies for “accumulated materials.”Footnote 73 Justifiably so: on 24 September 2010—probably because a lit cigarette had been dropped onto an overflowing balcony—a fire started.Footnote 74 The blaze became very large; it was classified as a six-alarm fire, the highest classification possible in Toronto.Footnote 75 More than 100 firefighters responded and over 1,000 tenants were displaced from their homes.Footnote 76
TCHC was, by all accounts, singularly focused on the fire and its aftermath for the days and weeks after the blaze. Temporary shelters had to be set up; clothing and food needed to be arranged.Footnote 77 Onlookers described the scene as resembling large-scale refugee displacement.Footnote 78
Unsurprisingly given the intervening events, when the Board next met in November 2010, the CEO acknowledged that TCHC would not be able to advance evictions policy changes as quickly as the Board had expected.Footnote 79 A few new quantitative metrics for the Board to monitor eviction-prevention efforts were proposed.Footnote 80 But the OCHE still did not appear.
When the Board responded to the plan, their attention seems to have been diverted: the first recorded question on the eviction plan dealt with tenants having excessive belongings accumulated (i.e., hoarding)—not an issue that was strictly relevant to eviction prevention for tenants in arrears, but one that suggests they were thinking about the fire and its causes.Footnote 81
In January and February, the Board did not meet. They may have been delaying meeting until newly elected Mayor Rob Ford installed councillors on the Board. Thus, the Board had not returned to consider any aspects of the eviction process before March 2011. And, in that month, yet another distracting crisis hit.
The Toronto Auditor General released what was widely perceived to be a devastating indictment of financial controls in TCHC.Footnote 82 The report documented what were seen to be extravagant expenses. The item that generated the most outrage was $1,000 on chocolates from the high-end department store Holt Renfrew; Toronto media and the new City Council were incensed.Footnote 83 The outrage is hardly surprising in the context of a public housing agency, serving low-income community members, with massive budget shortfalls. (But it seems to have mostly escaped public notice, at the time, that the chocolates had been purchased as gifts for the staff who had worked at 200 Wellesley Street during the fire.Footnote 84)
The City cleaned house: the CEO and the entire Board were, in short order, replaced.Footnote 85 The replacements were skewed towards people with financial management expertise.Footnote 86 When the LeSage Report came back on the agenda, it was with a markedly different tone than when the Board first saw it in 2010. TCHC staff informed the Board that hesitancy about evicting tenants was leading to increases in arrears: the focus was once again on the financial health of the corporation.Footnote 87 In August, the Board approved the acting CEO’s plan to move reporting on eviction-prevention measures back to only quarterly reports. And they seem to have mostly been diverted away from the policies being designed to address evictions for rent arrears: only the new policies for “cause” evictions (e.g., for illegal acts) generated any questions from the new finance-focused Board.Footnote 88
For the remainder of 2011, fairness in evictions remained off the Board’s agenda. In March 2012, one of the committees of the Board accepted a recommendation from the acting CEO that the OCHE should not be pursued in any form: the existing mechanisms, the report concluded, were enough.Footnote 89 No mention was made of Mr LeSage’s logic that tenants needed more assistance than could be provided by the institutional structures then in existence.
This period of distraction seems, in many respects, to have been a product of profound bad luck. Of course, systemic conditions had created the circumstances that led to the fire and the financial mismanagement. But the fact that each of the crises hit so soon after the LeSage review—rather than, say, a year later—seems to have impeded any progress that might otherwise have been made. The vagaries of external events were slowing the internal administrative law-reform process and preventing important proposals in the LeSage Report from being fulfilled.
Realization: 2013–2014
In June 2013, Fiona Crean was in office as the Toronto Ombudsman. That office was established by provincial legislation to “investigate in an independent manner” when issues arise related to City of Toronto bodies.Footnote 90
Ms Crean’s office received a complaint about another senior citizen’s eviction from TCHC. Undoubtedly supported by her legal and policy counsel, she duly investigated the complaint. Having done so, Ms Crean released a hard-hitting report that seems to have set out to demonstrate all the ways in which TCHC had failed to live up to its own commitments to reform its processes after the LeSage Report.
The LeSage Report had been diplomatic: it began, for instance, by thanking TCHC staff.Footnote 91 The report that Ms Crean authored did not. To take two examples, she called TCHC’s approach to evicting seniors who were in rent arrears “harsh and unthinking”Footnote 92 and wrote that the corporation showed “a callous disregard and a total absence of compassion.”Footnote 93
The findings, she continued, were “more unsettling in this case than previous investigations and inquiries, because the TCHC’s prior undertakings and promises remain unfulfilled.”Footnote 94 The core of her analysis was that TCHC should implement “the outstanding Justice LeSage recommendations […] without further delay and no later than October 1, 2013.”Footnote 95
Given her expressed outrage, she might have been expected to recommend many additional layers of reform, beyond the as-yet-unsuccessful LeSage Report recommendations. But she remained on the path that Mr LeSage had already trod. By adding her office’s imprimatur to preexisting proposals, she likely perceived that she could maximize the weight given to the recommendations. There was a degree of path dependency in the reforms she advocated. Had progress on the LeSage recommendations not been prevented by the crises of 2010–2011, Ms Crean might have advanced additional or different reforms.
Whatever Ms Crean’s strategy, the fallout was swift. City Council voted on 13 June 2013 to direct TCHC to implement the Ombudsman’s recommendations—but a gloss was added. Councillor Paula Fletcher, whom Mayor Ford had replaced on the TCHC Board, proposed a motion directing City staff to report on the “establishment of a Commissioner of Housing Equity for the Toronto Community Housing Corporation, as recommended in the LeSage Report.”Footnote 96
Councillor Fletcher seems to have latched onto the OCHE initiative for unique emphasis, even though the Ombudsman had not specifically highlighted it. Perhaps she perceived a way to force the implementation of a recommendation that had not been adopted while she was on the Board. Whatever her reasoning, it seems significant that one of the veterans of the Board’s debates in 2009 and 2010 was still on City Council: without someone so steeped in the history of the reform proposals, we may wonder whether there would have been anyone to pluck the OCHE from its anonymity among the reams of other unfulfilled promises. Once she placed it on the agenda, her motion carried—with Mayor Ford and his brother, then-future Premier of Ontario Doug Ford, among the nays.Footnote 97
At the Board’s direction, the CEO convened an external advisory group to implement the OCHE. The advisory group was led by one “citizen” Board member and one tenant Board member.Footnote 98 The rest of the advisers were drawn from community groups, advocacy organizations and subject-matter experts within TCHC. Unlike the internal TCHC working groups that had previously rejected the OCHE, this (almost entirely external) group moved expeditiously to frame the details of the proposal. At the Board’s meeting on 6 December 2013, the group presented a finalized implementation plan.Footnote 99 The Board, at long last, approved the signature recommendation in the LeSage Report.Footnote 100
This progression, from 2002 to 2014, which resulted in a new institutional design for protecting procedural fairness in TCHC rent-arrears evictions, seems to have been extremely contingent on events and the people who were involved in them. Because of the OCHE’s unique structure, it is reasonable to suppose that—absent the very particular chain of events and people that contributed to its adoption—it would not have existed at all. To say this is not, however, to accept a great man theory of history; none of the characters in this story heroically forced an institutional change. Nevertheless, they all did matter to the outcome of the story, in the sense that, at each moment in time, they responded, within the narrow scope available to them, to previous events and choices. In a real way, the record suggests their professional experiences, their ideas of justice, their ways of writing and so on each informed what they did when they became involved in the reform process. Had any of them not been part of the story, the small differences in what was done in each of those moments might have rippled across the years. Over time, things might have turned out differently. In 2014, the OCHE likely would not have existed. An internal administrative law reform would not have occurred.
Epilogue: An alternative form of fairness
To this point, readers may be forgiven for thinking this is something like a Whiggish history.Footnote 101 Was it not progress that, in 2014, the OCHE began trying to ensure that TCHC eviction decisions were procedurally fair? In my estimation, there is an important sense in which it was not.
It should be clear that the Board’s law-reform efforts between 2002 and 2014 all sanctioned essentially procedural understandings of fairness, within the framework provided by TCHC’s policies. That is probably useful: legal scholars have long argued that procedural fairness and substantive outcomes cannot be neatly divided; fair procedure may promote fair outcomes.Footnote 102 But it is nevertheless worth considering what is obscured by a focus on compliance with a rules-based procedure.
One way to see what is obscured is to return to the lawyer who was not present when Mr Gosling appeared before the Landlord Tenant Board. The LeSage Report briefly noted that the individual Mr Gosling named “is not a lawyer.”Footnote 103 That passing claim, it turns out, was complicated.
The person whom Mr Gosling described as his lawyer was called to the Ontario Bar in 1974. He represented a wide variety of marginalized people, including residents of public housing.Footnote 104 But, in the early 1990s, he was accused of professional misconduct.Footnote 105 He had purportedly overbilled the province’s legal aid programme by $150,000 over a three-year period. He eventually admitted that he had kept sloppy records: he claimed that the amounts he had billed were his attempts to reconstruct the hours he had really worked, but without tracking his hours. He seems to have believed that the legal aid system was grossly underpaying him.Footnote 106
Mr Gosling’s purported lawyer was disbarred after an acrimonious hearing that produced what some authors have claimed was the first written dissenting opinion in a disbarment proceeding before the Convocation of the Law Society of Upper Canada.Footnote 107 Observers have, over the years, lamented the outcome of the case for removing an iconoclastic lawyer who might have made other contributions.Footnote 108
Notwithstanding the disbarment, this individual practised as a paralegal for many years. He continued to perturb the legal profession, including by dressing in “clashing” clothing when in the courtroom.Footnote 109 When the province moved to regulate paralegals, however, he was denied admission to the professional order. He lacked, it was said, “good character.”Footnote 110 He seems to have persisted in offering legal assistance to disadvantaged members of the community.Footnote 111
Around 1979—before the former lawyer’s difficulties with the Law Society began—he met Mr Gosling.Footnote 112 While he did reportedly act as Mr Gosling’s legal adviser many times over the years, it seems that he was also Mr Gosling’s friend.Footnote 113 As Mr Gosling was dying, it was the former lawyer who reportedly held his hand in the hospital.Footnote 114
In his presence at Mr Gosling’s deathbed, the friend seems to have embodied a commitment to maintaining a relationship with a vulnerable person. In its purest form, that kind of commitment can help bring into view a profoundly different vision of fairness: living in relationship as lying at the core of what we owe others, particularly when they are vulnerable. It may be that this ideal of fairness requires such a resolutely personal and contextual approach that rules-based procedural norms will always be in tension with it.
None of this is to say that Mr Gosling’s friend perfectly embodied this ideal. I do not know to what extent he did, and I do not think it would be appropriate to speculate. But what matters for the present purposes is simply the ideal of fairness that his actions make visible.
We may ask whether this ideal could have been urged upon TCHC. Those ideals might have some place in the administrative state. For instance, Justice Sossin of the Court of Appeal for Ontario (writing before his elevation to the bench) has argued that space should be made for a genuinely relational ethic in the interactions between administrative decision-makers and those impacted by their decisions.Footnote 115 By actually forming relationships, Professor Nedelsky has claimed that the “subjects” of the administrative state can have their autonomy vindicated and fostered.Footnote 116 But to do so would have required a profound reimagining of what a public housing agency is and how it operates. It would have required seeing public housing agencies as facilitators of community and mutual aid, rather than as public-sector stand-ins for property management companies.
TCHC itself would not necessarily have opposed a different model. Many compassionate TCHC staff might have welcomed it. But to transition to such a model would have been massively expensive. New organizational structures focused on relational engagement with tenants would have had to be created; extensive staff training would have been needed. The institutional design changes would have been far more profound than introducing one discrete new office like the OCHE.
Most pressingly for the questions at issue in this article, however, a relational vision of TCHC’s role would have necessitated significant changes to the notion of “fairness” in evictions decisions. It seems likely that, with a relational concept of justice at the fore, a tenant who fell into rent arrears would rarely (or never) have been pushed out onto the streets of Toronto. But policies in line with this alternative vision of fairness would have required TCHC to tolerate significant—and probably irrecoverable—rent arrears. Given TCHC’s fiscal circumstances, that would have been impossible to contemplate.
So, it is not surprising that Mr LeSage was at pains to emphasize that TCHC cannot provide “social services.”Footnote 117 And it is not surprising that none of the other actors at the core of this story of internal administrative law reform felt they could move beyond his essentially procedural reform strategies. This is so even though each of the actors seems to have had a sincere and deeply felt commitment to advancing justice for TCHC tenants.Footnote 118 Thus, while the specific form of TCHC’s protections for evictions fairness were deeply contingent on the people and institutional histories that shaped them, the basic logic of the schemes was constrained by the political priorities of early-2000s Ontario: funding public housing was not a priority. Against those political and economic currents of their time, many tenants, staff, Mr Fiorito, Mr LeSage, Ms Crean, Ms Fletcher and all the others who contributed to TCHC’s internal administrative law-reform efforts made no headway.
Conclusion
The historical record suggests that the reasons why TCHC adopted a novel institutional mechanism designed to ensure procedural fairness in rent-arrears evictions were deeply contingent. That is, the internal reform arose from a sequence of events and initiatives, shaped in some measure by the individuals who were involved. First, there was a period of invisibility during which policies to promote fairness in evictions were generally not on the Board’s agenda while other matters were at the fore. Second, there was the shock caused by Mr Gosling’s tragic death, which prompted the Board to initiate the independent inquiry that proposed the OCHE. Third, there was a period of distraction, during which attention was diverted away from rent-arrears evictions. During that period, attention was initially on fire safety; eventually, it was on financial management. And then the reform project was finally realized, after the Toronto Ombudsman and City Council threw their institutional weight behind it. Because funding public housing was not a political priority, the reform project remained essentially procedural. That is how the OCHE came to be adopted at the beginning of TCHC’s second decade.
Because this vignette is not a work of detached legal history, I will venture three conclusions about broader contemporary administrative law that can be drawn from it. Each relates to the instrumental purpose of the vignette: to supply a law-reform story that can help expand the legal imagination and thereby contribute to sustaining administrative law’s internal turn.
First, while the path to implementation was winding, it would be a mistake to see that quality as a special feature of internal administrative law reform. On close examination, we would probably also find that administrative bodies can be inattentive or distracted from implementing reforms directly imposed by the external actions of courts or legislatures.Footnote 119 The nonlinearity of this example of internal administrative law reform may just be the messiness of implementing all law reform. That realization sullies the neatness of law in isolation—but it is a feature of understanding how law really relates to public policy.
Second, it is obvious that the institutional reform story presented above was not purely internal to TCHC. It was internal in the sense that the external bodies that have been the focus of administrative lawyers—the courts and the legislatures—were not involved. Instead, the bodies that drove the reforms were each part of the “administrative state.” Those bodies included an independent public inquiry established by the TCHC, the Toronto Ombudsman and the Toronto City Council. It should be apparent that lawyers play important advisory roles in each of those settings. Those are places for lawyers to contribute to internal administrative law reforms.
Finally, the vignette emphasizes how much lawyers and legal scholars who are interested in advancing internal administrative law reforms will need to engage with the political and economic context within which administrative bodies exist. Reforms may be more or less plausible, depending on that context. Lawyers and legal scholars will need to be sensitive to that context if their internal administrative law-reform proposals are to succeed. To develop that sensitivity, we will need to learn about much more than the law in isolation. Perhaps most importantly, we will need to learn more about the human costs that can sometimes arise from administrative unfairness, such as Mr Gosling’s tragic death.
In sum, then, because there is promise in administrative law’s internal turn, it is worth sustaining it by making stories of internal administrative law reform visible. Those reforms can create changes within the political and economic limits of the day, even when courts and legislatures are not engaged. They should continue to be a focus for administrative law scholars and others who are interested in the relationship between law and public policy. And, to ensure that can happen, we will need to learn about other stories of internal administrative law reform.
Acknowledgements
Thanks are due to Katrina Bland and Tina Piper, each of whom gave valuable feedback on previous versions of this article. One of those versions received the McGill University Faculty of Law Osgoode Society Legal History Book Prize. Any remaining errors are mine.
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