COURT FILE NO.: 277/08

DATE: 20081023

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

LEDERMAN, SWINTON AND BALTMAN JJ.

B E T W E E N:

BELLAMY HOUSING CO-OPERATIVE INC.

Applicant

(Respondent on Appeal)

• and -

MARK BRYANT and NADINE McFARLANE

Respondents

(Appellants)

Bruce D. Woodrow, for the Applicant (Respondent on Appeal)

Joseph Kary, for the Respondent (Appellant), Nadine McFarlane

HEARD at Toronto: October 23, 2008

SWINTON J.: (Orally)

1This is an appeal from the decision of Wilton-Siegel J., dated May 22, 2008, in which he declared the appellant’s membership and occupancy rights terminated in the respondent Co-operative and granted a writ of possession.

2In reviewing a decision of a co-operative, an application judge must normally determine whether the decision of the co-operative was reasonable, although on questions of law, the co-operative must be correct. The application judge must also determine whether the co-operative afforded the member procedural fairness.

3The application judge found that the Co-operative made a reasonable decision in withdrawing the subsidy of the appellant, Nadine McFarlane, because she failed to disclose her receipt of benefits from Ontario Works since 2002. Section 11 of O.Reg. 298/01 under the Social Housing Reform Act, 2000, S.O. 2000, c.27 provides for review of eligibility of a household to receive rent-geared-to-income assistance at least once in every twelve month period. Subsection 11(3) states:

The household subject to the review shall provide such information and documents as the service manager may require within the time period specified by the service manager.

Paragraph 12(1)(i) of the Regulation provides that a household ceases to be eligible for rent- geared-to-income assistance if the household fails to comply with s.11.

4The application judge found that the decision to terminate the appellant’s occupancy rights and membership was reasonable given the arrears in August, 2007 (including the new housing charge of $988.00 per month without subsidy) and the history of late payment of housing charges. He found that the Co-operative had met its obligation of procedural fairness and that it would not be unfair to order eviction.

5The appellant submits before us that the application judge failed to recognize the distinctions in the decision of the property manager and the internal review - one being a reduction of subsidy and the other being a finding of ineligibility for subsidy.

6In the context of the matter before the application judge, this is a distinction without a difference. Whether it was a reduction or a withdrawal of subsidy, the issue was the reasonableness of the ultimate decision of the Co-operative to terminate and evict because of arrears and historic late payment. The application judge dealt with that issue in a thorough and well-reasoned fashion.

7In any event, the grounds for ineligibility are clearly set out in the Notice of Opportunity to Comment and in the Notice of Board Meeting to Conduct a Review. At all times, it should have been evident to the appellant the basis on which the Co-operative was proceeding. She knew the case to meet and was given numerous opportunities to respond.

8While the appellant submits that the application judge had insufficient evidence to determine the amount of arrears, we are not satisfied that the issue of arrears before August, 2007 was before him. If anything, the reasons of the application judge suggest that the appellant raised an issue only with respect to repayment over time of any excess subsidy received (see his Reasons at paragraph 50). There is nothing before us to show that she argued a refund might be owing to her.

9The appellant argued that the Co-operative’s decision was tantamount to a finding of fraud and this is not a forum in which findings of fraud can be made. A co-operative does not act improperly if it finds that a member has intentionally failed to disclose information he or she is required to provide by the regulations or by-laws and bases a subsidy decision on that finding.

10The application judge has a discretion whether to order a writ of possession. Here he considered the appropriate factors, and we see no basis to interfere with his decision.

11Therefore, the appeal is dismissed.

LEDERMAN J.

12I have endorsed the record to read: “The appeal is dismissed for oral reasons delivered by Swinton J. We are of the view that costs of the appeal fixed at $5,000, all inclusive is appropriate in the circumstances. Such costs are payable by the appellant to the respondent. In the circumstances, the enforcement of the writ of possession is postponed for a period not exceeding one week.”

SWINTON J.

LEDERMAN J.

BALTMAN J.

Date of Reasons for Judgment: October 23, 2008

Date of Release:

COURT FILE NO.: 277/08

DATE: 20081023

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

LEDERMAN, SWINTON AND BALTMAN JJ.

B E T W E E N:

BELLAMY HOUSING CO-OPERATIVE INC.

Applicant

(Respondent on Appeal)

• and -

MARK BRYANT and NADINE McFARLANE

Respondents

(Appellants)