Court File and Parties
COURT FILE NO.: 524/04 DATE: 20041215
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
B E T W E E N:
SUSAN BECKER Applicant
- and -
CITY PARK CO-OPERATIVE APARTMENTS INC. Respondent
Counsel: Nathan M. Ross for the Applicant Bruce D. Woodrow for the Respondent
HEARD: December 9, 2004
REASONS FOR JUDGMENT
Pitt J.
1This is a motion brought by the respondent, City Park Co-operative Apartments Inc. (the “Co-operative”) to quash a member’s application for judicial review brought in the following circumstances.
2The respondent’s board of directors made a decision on August 11, 2004, upheld by the membership on September 18, 2004 to terminate the membership and occupancy rights of the member. The court does not underestimate the significance of the fact that the member suffers from Epilepsy.
3It is common ground that the Co-operative must seek the assistance of the Superior Court of Justice in order to effectively terminate the occupancy rights and membership rights of a member.
4Recognizing that the Co-operative intended to seek judicial relief, the applicant, Susan Becker (the “member”, “Becker”) on October 5, 2004, commenced an application for judicial review seeking:
CERTIORARI:
(a) an Order to quash the decision of the Board of Directors, dated August 10, 2004, and the decision of the Members, dated September 18, 2004;
(b) the Court’s guidance as to the scope of the Board’s and Members’ powers; and
(c) an Order referring the matter back to the Board of Directors to be reconsidered in light of the Court’s comments.
5The grounds for the relief sought in the application for judicial review are extensive, but focus primarily on alleged unfairness and arbitrary conduct of the Co-operative in making the decision to terminate the membership and occupancy rights of the member. The member has also invoked s. 15 of the Charter of Rights and Freedoms to support her position.
6The neat issue in this proceeding, which requires a speedy resolution, is whether the Co-operative Corporations Act, R.S.O. 1990, c. C.35 (the “CCA”) provides an adequate and appropriate forum in which those seeking to challenge the decision of the directors and membership, on an eviction issue, could pursue that challenge and obtain a remedy.
7Although as Beetz J., for the majority, held in Harelkin v. University of Regina (1979), 96 D.L.R. (3d) 14 that ““even in cases involving lack of jurisdiction”, the prerogative writs maintain their discretionary nature,” see Epstein J. in Freeman-Maloy v. York University, [2004] O.J. No. 3123 (Div. Ct.), it does not follow that judicial review is always available where procedural fairness is involved.
8In determining whether the CCA provides an adequate alternative remedy to judicial review, it is necessary to consider the nature of the decision-making bodies and the convenience of the alternative remedy.
9Non-profit housing co-operatives are democratic communities. They operate according to the principle of “one member, one vote”. By-laws are not effective until confirmed by the members at a general meeting. The board of directors is elected by and from among the members. The members can requisition general meetings and also meetings of the board of directors. The members can remove all or some of the board of directors, and replace them. See Co-operative Corporations Act, R.S.O. 1990, c. C.35: s. 1(1) “co-operative”, “co-operative basis”; s. 23 [by laws]; s. 70 [requisition board meetings]; s. 79 [requisition general meetings]; s. 90(1) [election of directors]; s. 70 [removal of director(s)]; David B. Archer Co-operative Inc. v. D’Oliveira, [2003] O.J. No. 1469 (Div. Ct., per A. Campbell, McNeely, E.M. Macdonald, JJ.) at para. 5.
10The Court of Appeal has confirmed that this relationship between the members and a co-operative is based on a concept of collective co-ownership. Members undertake to abide by the by-laws and rules and can stay as long as they do so, until they decide to leave. See McBride v. Comfort Living Housing Co-operative Inc. (1992), 7 O.R. (3d) 394 (C.A.) per Finlayson J.A. at pp. 400– 401.
11Members of the Co-operative wear two hats. Individually the members are occupants, but collectively they are the management. If members of the Co-operative are unhappy with its operation or with the relationship between it and themselves, they can seek to change it through the democratic process. Not only can they attend general meetings and elect the directors, but they can even run for election themselves. See Re Con Area Co-operative Homes v. Lee et al (1979), 26 O.R. (2d) 40 (Co. Ct.) per Conant J. at p. 43.
12The absence of a mechanism in the CCA for facilitating the initiation of a proceeding by members against the directors and the membership on an issue of termination of membership and occupancy rights seems to be the cause of the member’s claim for entitlement to judicial review.
13An examination of the CCA, especially as it relates to eviction, reveals how extensive is the protection it provides to members for the vindication of their rights:
(a) Firstly, members are entitled to participate in proceedings at the board and membership level on all issues relating to his/her membership and occupancy rights.
(b) As I indicated earlier, the Co-operative is required by section 171.13 (1) to make an application to the Superior Court of Justice to terminate the occupancy and membership rights of a member and to obtain a writ of possession.
(c) Secondly, s. 171.20 (1) of the CCA provides members, who are often lay people, with much evidentiary facility. It provides:
171.20(1) Subject to subsections (2), (4) and (5), a judge of the Ontario Court (General Division) [now Superior Court of Justice] may admit any oral testimony or any document or thing as evidence at a hearing under section 171.13 or 171.14 and may act on such evidence.
(d) By section 171.21 (1), a judge is given the right to refuse to grant the application for a writ of possession, despite any other provision of the CCA or the by-laws if he or she is satisfied, having regard to all the circumstances, that it would be unfair to grant it. [My emphasis.]
(e) Finally, a final order in an application under 171.13 may be appealed as of right to the Divisional Court.
14Admittedly, there are some differences of opinion (although, in my view, not significant in practical terms) about the degree of deference to be granted by the courts to the directors and members and whether or not the “hearing” mandated by s. 171.13 (12) is a hearing de novo or a “hearing” in a summary manner. See Tamil Co-operative Homes Inc. v. Arulappah, [1999] O.J. No. 1460 (Div. Ct.). There is nothing, however, in the statute nor in the case law that restricts the court in doing justice to the members.
15Even in judicial review applications, the issue of deference is a constant.
16The degree to which other statutes may be invoked for the protection of members is illustrated in the case of Niagara North Condominium Corp No. 46 v. Chassire, [1999] O.J. No. 1201, File No. 40448/98 (Ont. Gen. Div.), where E. Macdonald J. applied the Human Rights Code to protect an applicant from eviction.
17In Ablitt v. Oak Street Housing Co-operative Inc. (April 27, 1987) 199/87 (Div. Ct.), this court, per O’Leary J., denied relief in similar circumstances.
DISPOSITION
18I see no basis for the belief that judicial review will provide as good an avenue of relief, and certainly not a better avenue, of relief for the member.
19For all of the foregoing reasons, the motion is granted.
COSTS
20Cost shall be left to the trial judge hearing the Co-operative’s application, which I understand is imminent.
Pitt J.
Released: December 15, 2004
COURT FILE NO.: 524/04 DATE: 20041215
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
B E T W E E N:
SUSAN BECKER Applicant
- and -
CITY PARK CO-OPERATIVE APARTMENTS INC. Respondent
REASONS FOR JUDGMENT
Pitt J.
Released: December 15, 2004