SUPERIOR COURT OF JUSTICE – ONTARIO – DIVISIONAL COURT NEWMARKET
CITATION: Landsberg/Lewis Housing Co-operative Inc. v. Shames, 2010 ONSC 5249
COURT FILE NO.: DC-09-84-00
DATE: 2010/09/23
RE: Landsberg/Lewis Housing Co-operative Inc. v. Isaac Shames
BEFORE: Justice Jennings, Justice Herman and Justice Harvison-Young
COUNSEL: Paula Boutis, for the Co-operative/Respondent Joseph Kary, for the Member/Appellant
ENDORSEMENT
By the Court:
[1] The appellant appeals from the judgment of the motions judge dated September 2, 2009, in which she declared the appellants’ membership and occupancy rights terminated; ordered a writ of possession; and ordered the appellant to pay housing charges of $131 per month. The appellant raised several grounds of appeal.
Denial of procedural fairness in refusal of adjournment
[2] The motions judge found that the appellant avoided his responsibility to attend the board meeting or participate in a process when one might have been scheduled so as to avoid any inconvenience to him or his family. She found that his failure to attend the meeting was a deliberate choice made to facilitate his avoidance of paying his housing charges. These are findings of fact and deserve a high level of deference from this court. It follows from these findings that the Board’s decision to proceed in the absence of the appellant was not a denial of procedural fairness.
Denial of procedural fairness because he did not have notice of the Region’s decision
[3] At the time of the board meeting, the co-operative was aware that the Region had confirmed the co-operative’s calculation of the appellant’s monthly housing charge. The appellant was unaware of this decision until several days after the Board’s hearing and decision.
[4] Had the appellant attended the meeting, he would have learned that the Region had made its decision. Given the motion judge’s decision that the appellant had made a deliberate choice not to attend, his failure to learn about the Region’s decision was as a result of his own actions. The decision of the Region was, in any event, merely confirmatory of the co-operative’s position regarding the amount of the monthly housing charge.
[5] The appellant did not appeal the decision of the Board to the membership even though he was advised of the Region’s decision within the appeal period and he was advised in writing of his right of appeal.
[6] The Board’s decision to end the appellant’s occupancy rights was based on two grounds: arrears and persistent late payments. The decision of the Region was immaterial to the Board’s decision with respect to the ground of repeated late payments. The motions judge accepted the co-operative’s evidence that the appellant had been repeatedly late in payments.
The motions judge did not resolve the issue of arrears
[7] The motions judge found that the appellant owed, at minimum, arrears of housing charges of a minimum of $131 per month from July 15, 2007 to date. Her order for payment was based on that figure. She did not make a finding or make an order for a higher amount although there was evidence from the co-operative that the housing charge was $256 per month.
[8] The appellant’s dispute about the monthly housing charge turned on the carry forward of business losses. The motions judge referred to section 84(4) of the Social Housing Reform Act which provides that a review decision is final.
[9] The reasons of the motions judge are clear that, in light of the fact that the appellant owed at least $131 per month (which he had not paid since July 2007 and which he admitted he owed), and in light of the repeated lateness of payments, the grounds for eviction had been made out. Her failure to determine the actual level of monthly rent did not prejudice the appellant. In fact, it was to his advantage, since the amount she ordered the appellant to pay was the minimum amount.
The appellant should have been given an opportunity to pay the arrears
[10] The appellant relied on the case of Agincourt Co-operative Homes Inc. v. Edwards, [2006] O.J. No. 2294 (Sup. Ct.) as authority for the proposition that in a case where a co-operative member is told that he or she owes significantly more money than is in fact owed, it would be unfair to issue a writ of possession without first giving the member a chance to pay off the arrears.
[11] In the Agincourt case, the co-operative had made an error in the amount that the member owed. That is not the situation in the case before us. The motions judge ordered the member to pay the minimum amount but she did not find that the co-operative had been in error. Furthermore, the appellant never paid any amount although he admitted that he owed at least $131 a month. In these circumstances, it would not be unfair to issue a writ of possession without giving the appellant a chance to pay off the arrears.
The motions judge improperly found the appellant in contempt without giving him a chance to make submissions
[12] The motions judge indicated that, in the event that the appellant did not comply with prior orders of the court, a hearing date would be set for him to explain his contempt and a disposition would be made at that time. This is not a finding of contempt nor is it a denial of the appellant’s right to make submissions since the motions judge provided that the issue of contempt would be dealt with at a later date if the appellant did not comply with the court orders.
Failure to consider whether it would be unfair to grant the writ of possession
[13] Section 171.21(1) of the Co-operative Corporations Act, R.S.O. 1990, c.C.35 provides that a judge may refuse to grant the application for a writ if he or she is satisfied, having regard to all the circumstances, that it would be unfair to grant it. We are not satisfied that there were any circumstances that would have warranted the exercise of the motion judge’s discretion to refuse to grant the writ of possession.
Conclusion
[14] The appellant’s appeal is therefore dismissed.
[15] If the parties cannot agree on costs, they may make brief written submissions (no more than 3 pages in length plus a bill of costs). The respondent’s submissions shall be received within 14 days. The appellant has a further 14 days within which to provide a response.
Jennings J.
Herman J.
Harvison-Young J.
DATE: September 23, 2010