ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
CUNNINGHAM A.C.J., LANE, pitt jJ.
B E T W E E N:
TAMIL CO-OPERATIVE HOMES INC.
Applicant
(Respondent in Appeal)
- and -
SIVA KANDIAH
Respondent
(Appellant)
Bruce D. Woodrow for the Applicant (Respondent in Appeal)
Joseph Kary for the Respondent (Appellant)
HEARD: December 6, 2004
Pitt J.
REASONS FOR JUDGMENT
NATURE OF PROCEEDING
1The appellant, Siva Kandiah appeals from the judgment of Cameron J. dated September 8, 2003, evicting her from her housing in Tamil Co-operative Homes Inc. (the “Co-operative”) and ordering her to pay arrears.
2The appellant requests an order setting aside the Order of Cameron J. and reinstating the appellant’s membership, with costs of this appeal and the trial. In the alternative, the appellant requests that the matter be remitted to a new trial.
STANDARD OF REVIEW
3The Supreme Court of Canada recently addressed the standards of review of an appeal from a judge’s decision in Housen v. Nikolaisen (2002), 2002 SCC 33, 211 D.L.R. (4th) 577; [2002] S.C.J. No. 31 (Cited to QL). In summary:
On a pure question of law, the basic rule with respect to the review of a trial judge’s findings is that an appellate court is free to replace the opinion of the trial judge with its own. Thus the standard of review on a question of law is that of correctness.
The standard of review for findings of fact is that such findings are not to be reversed unless it can be established that the trial judge made a “palpable and overriding error”: Stein v. “Kathy K” (The Ship), [1976] 2 S.C.R. 802.
28 Where the trier of fact has considered all the evidence that the law requires him or her to consider and still comes to the wrong conclusion, then this amounts to an error of mixed law and fact and is subject to a more stringent standard of review [than for findings of fact].
ANALYSIS
4The primary basis for the appeal is the trial judge’s alleged failure to exercise the fulsome discretion granted him by s. 171 of the Co-operative Corporations Act (the “Act”) to remedy what the appellant considers to be the injustice perpetrated by the board of directors of the respondent corporation in seeking to terminate the appellant’s membership and occupancy rights by evicting the appellant. The appellant submits that the trial judge fell into this error by adopting an approach of excessive deference to the decision of the board of directors on an eviction issue that would be warranted only if the issue before him had been the “enactment by the Co-operative of the by-laws of general application.” She alleges that this deference is illustrated most explicitly in the following paragraphs of the reasons for judgment:
[13] … I have no jurisdiction to deal with membership issues or with subsidies.
[29] I have a great deal of sympathy with Ms. Kandiah’s predicament. However, I have no jurisdiction to deal with either her daughter’s membership or the rent subsidy. For the latter she must look to the administrators of social legislation. For the former she must look to the Co-op and its rules respecting membership.
5While it is evident from his reasons that the trial judge was familiar with and took cognizance of the authorities like Ryegate (Tucumseh) Co-Operative Homes Inc. v. Stallard, [2002] O.J. No. 5423 (Div. Ct.); David B. Archer Co-operative Inc. v. D’Oliveira, [2003] O.J. No. 1469 (Div. Ct.); and Wilcox Creek Co-operative Homes Inc. v. Moor, [1996] O.J. No. 2250 (Gen. Div.), we do not share the appellant’s view that the judge misdirected himself on the applicable law.
FACTS
6It is notable that the parties have some real differences about the evidence before the trial judge. This is not entirely surprising, as the proceeding was summary in nature, appellant’s counsel was not trial counsel, and the appellant was a difficult witness.
7The application dated March 28, 2003 sought a declaration of termination of membership and occupancy rights, in consequence of arrears of housing charges in the amount of $1,109.04 to September 13, 2002, and for compensation of $5,054.96 to March 31, 2003 for occupation of a membership unit.
8The statement of dispute was as follows:
The cooperative claims payment of arrears and payment of compensation $1109.04 and $5054.96 which may be based on market rent.
I was paying 30% of my monthly income being a Senior (Date of Birth 27▪3▪30) and getting an old age security pension. Suddenly they terminate my occupancy rights. SIN 501 XXX XXX I have done my very best service to the coop and the children in the coop and the neighbourhood.
I appeal for justice.
Date 31▪3▪2003 Siva Kandiah
9The appellant’s arguments fail to acknowledge that the focus of the appellant at trial was somewhat different from her focus on the appeal. The difference can be discerned from the relief sought in a motion brought by the appellant on April 15, 2003. In that motion, she sought the following:
A change in the order of 15th April 2003. The order is to pay $763 monthly until the application is disposed of.
1A. Being a senior receiving a monthly old age security pension of $1000/72, to pay $763 creates a strain therefore the respondent humbly appeals to be ordered to pay 30 percent of the income for rent until the application is finally disposed of.
OR
1B. To have the membership number allocated for my daughter to live with me in Apt. 417, 20 Wade Ave. Tamil Cooperative Homes Inc.
and from the following paragraphs in the judgment below:
[10] The decision of the board was made on the basis of a history of numerous delays in payment and current housing arrears of housing charges of $1,094.
[11] This Application was filed March 28, 2003. Ms. Kandiah filed a statement of dispute on March 31, 2003. The matter was brought before Madam Justice Speigel on April 15, 2003. Ms. Kandiah was unrepresented. She [Madam Justice Speigel] made an interim order to pay current housing charges and adjourned the matter to May 14, 2003. On May 14, 2003 it was adjourned to July 25, 2003. On the return date Ms. Kandiah was unrepresented but filed a motion and an affidavit dated July 22, 2003 pleading impecuniosity and asking that her daughter be permitted to live with her and be given membership in the Co-op. She was again unrepresented. The Application was again adjourned to today. She was represented today by Mr. Nicholson.
[12] In her evidence before me today, Ms. Kandiah raised for the first time her allegation that neither the Notice to Appear nor Notice of Board Decision was served on her. [Our emphasis.]
10The appellant alleged that her decision to relinquish her subsidy in December 2001 was the cause of her financial difficulty, and that the decision was induced by the misrepresentation of the president and board of directors of the Co-operative that her daughter would be granted membership in the Co-operative, which would assist the appellant in paying the market rent.
11Paragraphs 3, 4 and 5 of the Reasons are as follows:
[3] Ms. Kandiah was born in 1930 and is a retired teacher. She has lived in the Co-op since 1988. She lives on a pension income of $1,071 per month and had in the past been given a subsidy of 50% of her rent.
[4] In December 2001 she wrote a letter to the Co-op asking that her rent be increased to market rent. She said this was because her daughter would be coming to live with her and she had been assured by the Co-op that her daughter could be a member. There is no evidence her daughter ever applied for membership. [Our emphasis.]
[5] Ms. Kandiah testified that she had applied for a subsidy every year since 1997, including in March 2002. The Co-op had no evidence of such a request in 2002. On May 1, 2002, the Social Housing Reform Act, 2000 came into force and the Co-op no longer had the authority to authorize subsidies. Under ss. 68 and 69 of that Act the City of Toronto controlled waiting lists for rent geared to income units and the amounts of the rent. Ms. Kandiah’s unit had ceased to be a rent geared to income unit and ceased receiving subsidy as at January 1, 2002.
12The evidence at the hearing was that the appellant lived in a “single apartment” which could not accommodate another adult person, which her daughter was.
13It seems clear that the trial judge did not accept the allegation of misrepresentation by the president and director. He was entitled on the record to this conclusion.
14The appellant had been the subject of an eviction decision in 2001. She was reinstated after an appeal to the membership. In this proceeding for unexplained reasons, she did not appeal to the membership.
15The appellant has lived in the subject premises for some 16 years. We would have hoped and indeed still hope that management could have been more creative in assisting the appellant with the subsidy issue, and at a minimum would have granted her a reasonable period of time to resolve that issue or find alternate accommodation.
16That said, we cannot find any error on a question of law in the reasons, nor can we say that the trial judge made any palpable and overriding error in the fact-finding process. In fact, it was notable that notwithstanding the confusing nature of some of the appellant’s evidence, the trial judge succeeded in grasping all the material facts.
17At first blush, we were concerned that the trial judge did not make specific reference to s. 171.21(1)(a) which gives the judge the right to refuse a writ of possession if it would be unfair to grant it, having regard to all the circumstances. But a careful reading of the reasons confirm that in paragraph 28, he noted that short falls in rent are borne by other members, and that Mrs. Kandiah had not exercised her right to appeal to the members. In the circumstances he found that “It would not be unfair to grant the application.” He was clearly also aware of Mrs. Kandiah’s personal circumstances. We see no error in principle in the exercise of this discretion.
DISPOSITION
18The appeal must, accordingly, be dismissed. Proceedings to enforce the order of Cameron J. are stayed for 60 days from the release of our decision.
COSTS
19Subject to any agreement between the parties, brief written submissions on costs are to be made within 20 days of the release of these reasons.
Cunningham A.C.J.
Lane J.
Pitt J.
Released:
COURT FILE NO.: 636/03
DATE: 20050208
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
CUNNINGHAM A.C.J., lane, pitt jj.
B E T W E E N:
TAMIL CO-OPERATIVE HOMES INC.
Applicant
(Respondent in Appeal)
- and -
SIVA KANDIAH
Respondent
(Appellant)
REASONS FOR JUDGMENT
Pitt J.
Released: February 8, 2005