A tent is not an accommodation under N.S. regulations, judge rules

A tent does not qualify as an accommodation, according to a Nova Scotia judge who ruled against the estate of a homeless man who died in one of an overdose in downtown Halifax ten days before the Christmas of 2023. Bradley Lowe had been living off $380 per month in social assistance. Two months before he died, he applied for the enhanced standard household rate of $950 per month. But a caseworker with the province rejected his application, as did Nova Scotia’s Assistance Appeal Board, four days after his death. His estate pressed on with the fight, taking it to the Nova Scotia Supreme Court. “The applicant’s request for a declaration that Mr. Lowe was living in a tent that he owned, had a disability, and was otherwise in need, meant that he qualified (for the larger rate) from the date of his application (Oct. 23, 2023) until his death … is denied,” Justice John Keith wrote in a recent decision. “A tent does not qualify as an ‘accommodation’ (under the province’s) regulations. As such, Mr. Lowe did not own accommodation for the purpose of receiving enhanced benefits under this section.”

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The judge’s May 1 decision notes Lowe “lived in poverty, suffered from chronic psychological disabilities, and survived off the minimal level of social assistance ($380 per month) available under Nova Scotia’s Employment Support and Income Assistance Act.” While Lowe had been camping on the grounds of Victoria Park, he died in one of the many tents pitched at the time on the Grand Parade in front of Halifax’s City Hall, about a 10-minutes’ walk away from where he’d been sleeping. “On Friday, December 15, 2023, Mr. Lowe died destitute in this tent,” Keith said. “He was 30 years old.” To qualify for the enhanced standard household rate of $950 per month, applicants must be a “single recipient” and “must rent or own their own ‘accommodation,’” said the decision. They must also fall within one of the following categories: be a person with a disability; “a chronic mental, cognitive or physical condition that limits participation in employment services;” be “fleeing an abusive situation, be 55 or older; or be “a young person receiving assistance.” Lowe made his application for enhanced benefits under the disability category. “The medical evidence before the board confirmed that Mr. Lowe suffered from chronic disabilities including a ‘generalized anxiety disorder’ and ‘polysubstance use disorder,’” Keith said. “A dispute arose around the third and final precondition and, in particular, whether Mr. Lowe was renting or owning his ‘accommodation.’ The question narrowed further to whether the word ‘accommodation’ in (Nova Scotia’s) regulations included Mr. Lowe’s tent.” After Lowe died, his lawyer, Vince Calderhead, “asked that the (Assistance Appeal Board) still render a decision because, he correctly observed, his estate retained an entitlement to past benefits should the appeal succeed,” said the judge. “During these proceedings, counsel added that the personal representatives for Mr. Lowe hoped that this legal challenge might also bring a measure of additional meaning to Mr. Lowe’s unfortunate death and highlight the plight of others caught in similar circumstances.” But the board dismissed Lowe’s appeal six days before the Christmas of 2023. “It confirmed that Mr. Lowe was entitled to minimum benefits for ‘essentials’ but not enhanced benefits,” Keith said. Lowe’s estate filed an application for judicial review. “The central question that the confronted the board is the same in this application for judicial review: does the word ‘accommodation’ (in the province’s regulations) properly interpreted, include a tent? If so, any ‘single recipient’ who owns a tent and otherwise falls within the specific categories (Lowe applied under) would be entitled to enhanced benefits.” The court had to define the word accommodation, said the judge. “And that is certainly the dominant consideration in these reasons. However, beyond the principles and constraints which guide the court’s authority to interpret legislation, a more profound debate quickly emerges around distributive justice and the related legal, societal, practical, and moral challenges which arise when sharing the province’s wealth with those who are vulnerable, suffering, or have fallen behind.” Many of those “broader issues go beyond the court’s jurisdiction to interpret legislation and, as well, the court’s authority to grant the relief sought,” Keith said. “Of course, this does not diminish their importance, but it does mean the legislature assumes greater responsibility for developing a more comprehensive response, if appropriate.” Calderhead argued “that the word ‘accommodation’ must be afforded a broad and liberal meaning, consistent with the law and, as well, the purpose and context of the legislation,” said the decision. “Applying this approach, the applicant concludes, results in an interpretation of the word ‘accommodation’ which is sufficiently expansive to include Mr. Lowe’s tent.” Nova Scotia’s Department of Community Services (DCS) “insists that the board’s interpretation of ‘accommodation’ as being synonymous with ‘home’ is reasonable and should be upheld.” The department argued “that the court must be pragmatic and realistic in its approach to statutory interpretation,” said the decision. “Broadening the interpretation of ‘accommodation’ to include a tent, DCS argues, would result in an unintended and absurd outcome in which entitlement to social assistance becomes so expansive as to be virtually incapable of effective oversight and responsible financial governance.” The judge sided with the province. “In my view and based on the wording and structure of the regulations, the word ‘accommodation’ is very clearly not so broad in scope,” Keith said. “A tent cannot qualify as an ‘accommodation’ and owning a tent does not entitle a recipient to household benefits.” According to the judge, “it is unreasonable and illogical to conclude that a recipient would be entitled to receive greater assistance by living in a tent.” While Keith found the Assistance Appeal Board “fell into error by mistakenly asserting that the word ‘accommodation’ in (the province’s regulations) was synonymous with the word ‘home,’” he dismissed the application.

• ‘Like I was in jail’: Why Halifax's homeless don’t want to leave their tents for shelters
• Tent encampments point to 'persistent failures' of government: federal advocate

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