SUPERIOR COURT OF JUSTICE - ONTARIO
LONDON DIVISIONAL COURT
RE: Venture Place Housing Cooperative Ltd., Applicant
- and -
Linda McLean, Respondent
BEFORE: Justices Ferrier, Ground and Lofchik
COUNSEL: John Mill for the applicant Daria Bukovec for the respondent (moving party)
HEARD: November 17, 2006
ENDORSEMENT
1The motions before this Court are brought within an appeal by Linda McLean (“McLean”) to this Court from an order of Quinn J., dated September 8, 2006, where he ordered the issuance of a Writ of Possession. The motions are brought by Venture Place Housing Cooperative Ltd. (“Venture”), for an order quashing the appeal or, in the alternative, pursuant to r. 63.01(5), lifting the stay of the enforcement of the Writ of Possession and for security for costs. Justice Brown has dismissed that part of the motion seeking security for costs, and counsel have been advised that this Court will not deal with a motion to quash the appeal in view of the fact that the appeal has not been perfected and there is not a full record before this Court.
2Accordingly, the only issue before this Court is the lifting of the stay of the Writ of Possession of the premises occupied by McLean at the Roseville Gardens in Windsor, Ontario.
3Whether the test to be applied to the lifting of the stay is irreparable harm to Venture if the stay is not lifted, as submitted by counsel for McLean, or a balancing of prejudice and convenience of the parties, as submitted by counsel for Venture, we are not prepared to order that the stay be lifted.
4Although there is evidence before this Court as to certain peculiar and eccentric behaviour on the part of McLean, all of which is denied by McLean, and evidence of some fear of McLean on the part of some of the other members of the Co-op, there is, in our view, no compelling evidence of a risk of serious physical harm to the Co-op building or to the other residents, and accordingly no threat of irreparable harm to Venture if the stay is not lifted.
5With respect to the balance of convenience and prejudice as between the parties, there is, in our view, serious prejudice to McLean if the stay is lifted in that it would appear that, if a new hearing of the application for a Writ of Possession is ordered by the appellate court and a Writ of Possession is denied, she would not get the benefit of s. 171(13) of the Co-operative Corporations Act, R.S.O. 1990, c. C.35, which provides that, if a Writ of Possession is denied, the person’s membership and occupancy rights shall be deemed not to have been terminated only if the member remains in possession of the premises. From the perspective of convenience, McLean would be required, if the stay is lifted, to vacate what has been her home for the last 25 years, and there would appear to be no assurance from the evidence presented to this Court that she would be able to obtain comparable assisted housing in the same general area.
6The only prejudice to Venture, if the stay is not lifted, would appear to be that, if McLean continues to be in residence, Venture may have some difficulty in obtaining further affidavits in support of its application for a Writ of Possession. It would appear, however, that Venture has already obtained a number of affidavits in support of its application from other members of the Co-operative. In any event, the further affidavits may or may not be admitted in evidence on the appeal. So far as convenience is concerned, the only inconvenience to Venture would appear to be that it may have to continue to deal with complaints and concerns of other residents, which may or may not be well founded, with respect to McLean’s conduct and with respect to McLean’s alleged noncompliance with rules of the Co-operative.
7Accordingly, we find no evidence of a threat of irreparable harm to Venture. We further find that the balancing of prejudice and convenience clearly favours McLean and would militate against the lifting of the stay. The motion is dismissed.
8If the parties are unable to agree as to the costs of this motion, brief written submissions as to costs may be made to this Court on or before December 15, 2006.
Ferrier J.
Ground J.
Lofchik J.
Released: December 1, 2006