Citation and Court Information
DIVISIONAL COURT FILE NO.: 491/10
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
SWINTON, LEDERER AND HOURIGAN JJ.
Parties
BETWEEN:
FIELDSTONE CO-OPERATIVE HOMES INC. Applicant (Respondent)
– and –
RODOLFO RODRIGUEZ, LIBERTAD RODRIGUEZ and ANAY RODRIGUEZ Respondents (Appellants)
Counsel and Hearing
Bruce D. Woodrow, for the Applicant (Respondent), Fieldstone Co-Operative Homes Inc.
Joseph H. Kary, for the Respondents (Appellants)
HEARD at Toronto: June 9, 2011
Oral Reasons for Judgment
SWINTON J. (ORALLY)
Introduction
1The appellants appeal from a judgment of Allen J. dated September 24, 2010 granting an application to terminate membership and occupancy rights in the respondent Fieldstone Co-operative Homes Inc. (“the Co-operative”) and ordering the issuance of a writ of possession.
Analysis
2The appellants raise, on appeal, issues of procedural fairness that were not raised before the application judge, namely, the failure of the Co-operative to refer Anay Rodriguez’s appeal to a general meeting following the March 2009 decision to evict, the issue of her failure to sign the April 3, 2009 Performance Agreement and the provision in the Performance Agreement, which counsel argues, required the resumption of the existing eviction process.
3We would not give effect to these grounds of appeal, as they were not raised before the application judge. The application before her turned on the reasonableness and the fairness of the November 2009 eviction decision by the Co-operative’s Board. She made no error in failing to consider a matter never raised before her.
4The appellants argue that the application judge denied them procedural fairness because she did not permit any oral evidence to be called. There is no merit to this argument. There is nothing in the Record to show the appellants requested an opportunity to call oral evidence, although they were represented by counsel at the hearing.
5The application judge stated that the standard of review of the Co-operative’s decision is patent unreasonableness. That is an error, as the standard of review of the Co-operative Board’s eviction decision is reasonableness (see David B. Archer Co-operative Inc. v. D’Oliveira, 2003 21004 (ON SCDC), [2003] O.J. No. 1469 (Div. Ct.) at para. 17). However, the application judge went on to find the decision of the Board to be reasonable, given the arrears at the time of the decision taken by the Board and the history of late payment of charges (see para. 8 of her Reasons). There is nothing in the record to show a denial of procedural fairness by the Board.
6The application judge made no error of law in her consideration of s.171.21(1) of the Co-operative Corporations Act, R.S.O. 1990, c. C.35, which gave her discretion to refuse a writ of possession on grounds that, having regard to all the circumstances, it would be unfair to grant the writ of possession. She balanced the interests of the appellants and of the Co-operative in accordance with the legislation, the relevant case law and the evidentiary record before her. In particular, she stated at para. 14:
As other courts have done, I recognize the unfortunate circumstances presented by an eviction. But, I also must take into account the Co-operative’s position given its financial predicament and the necessity for it to be able to arrange its business affairs, so long as the Co-operative acts within its authority under the By-laws and Rules.
Disposition
7For these reasons, the appeal is dismissed.
Costs
8I have endorsed the Appeal Book, “This appeal is dismissed for oral reasons given in Court today. Costs to the Co-operative fixed at $14,000.00, which is an amount that is fair and reasonable given the new issues raised on appeal, payable by the three appellants jointly and severally.
9We exercise our discretion to delay enforcement of the writ of possession for one week, in accordance with s.171.21(1)(b) of the Act.”
SWINTON J.
LEDERER J.
HOURIGAN J.
Date of Reasons for Judgment: June 9, 2011
Date of Release: June 30, 2011
CITATION: Fieldstone Co-operative Homes v. Rodriguez, 2011 ONSC 3660
DIVISIONAL COURT FILE NO.: 491/10
DATE: 20110609
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
SWINTON, LEDERER AND HOURIGAN JJ.
BETWEEN:
FIELDSTONE CO-OPERATIVE HOMES INC. Applicant (Respondent)
– and –
RODOLFO RODRIGUEZ, LIBERTAD RODRIGUEZ and ANAY RODRIGUEZ Respondents (Appellants)
ORAL REASONS FOR JUDGMENT
SWINTON J.
Date of Reasons for Judgment: June 9, 2011
Date of Release: June 30, 2011