CITATION: Furr v. Courtland Mews Cooperative Housing Inc., 2020 ONSC 1175
DIVISIONAL COURT FILE NO.: 129/19
DATE: 20200309
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Backhouse, Lococo and Penny JJ.
BETWEEN:
Tom Furr
Appellant
– and –
Courtland Mews Cooperative Housing Inc.
Respondent
M. Cohen, for the Appellant
M. Maktar and C. Sinclair, for the Respondent
L. Naidoo and E. Fellman for the Landlord and Tenant Board
HEARD: at Toronto February 13, 2020
Overview
[1] This is an appeal from a decision of the Landlord and Tenant Board (Board), ordering that the appellant, Tom Furr, be evicted from his co-op housing unit at Courtland Mews. While a number of grounds were advanced in the appellant’s factum for why the Decision should be overturned, at the hearing of the appeal the appellant relied on two of these grounds:
(1) the Board erred in granting the eviction order by applying the wrong legal test; and
(2) the Board committed palpable and overriding errors of fact in reaching its conclusion that the eviction order should issue.
Background
Statutory Framework:
[2] Non-profit housing co-operatives are governed by Co-operative Corporations Act (CCA). The CCA provides that the Residential Tenancies Act, 2006 (RTA) does not apply to member units of a non-profit housing co-operative except as provided in either the CCA or RTA. The RTA provides that Part V.1 applies to co-operatives. The purpose of Part V.1 is to provide protection to members of non-profit housing cooperatives from unlawful evictions and to allow cooperatives and their members access to the framework of the RTA for the adjudication of disputes relating to the termination of occupancy.
[3] The CCA sets out the procedure by which a member’s rights in a co-operative may be terminated. Membership and occupancy rights may only be terminated by majority vote of the co-operative board. If a co-operative board votes to terminate a member’s rights, the member may appeal the decision to a general meeting of the co-operative membership, which may confirm, vary, or set aside the decision of the board.
[4] If a member’s rights have been terminated in accordance with the CCA and the member does not subsequently vacate his or her unit, the co-operative can apply to the Board under Part V.1 of the RTA for an order terminating the member’s occupancy under certain enumerated grounds. Here, the relevant enumerated ground is an act or omission of the member which “seriously impairs or has seriously impaired the safety of any person.”
Factual Context
[5] The respondent, Courtland Mews Co-operative Housing Inc. is a non-profit housing co-operative under the CCA. Mr. Furr joined the Co-operative in 2009. For a period in 2011-2012, he served as a director on the Co-operative’s board. Toward the end of his time as a director, he raised concerns regarding on-site work done by contractors to the board and to Angela Pringle, the Co-operative’s property manager. Mr. Furr had a verbal altercation with Ms. Pringle at that time. Mr. Furr was asked by the board not to communicate directly with Ms. Pringle after further verbal altercations with her.
[6] In May 2017, in response to a dispute over a prohibition on gardening in an area of the Co-operative complex, Mr. Furr attended the Co-operative’s office and engaged in a “heated verbal argument” with Ms. Pringle. On June 14, 2017, Mr. Furr attended the Co-operative’s office and asked to inspect the Co-operative’s membership list. Ms. Pringle had no instructions to release the requested information and refused to “buzz in” Mr. Furr, leaving him outside the office door. He demanded to be permitted entry, repeatedly rang the doorbell, and yelled to Ms. Pringle. Ms. Pringle called the police, who attended after Mr. Furr had left.
[7] Incidents involving Mr. Furr continued and, on April 17, 2018, counsel for the Co-operative served Mr. Furr with a trespass notice prohibiting him from attending meetings of the Co-operative board and membership. On May 14, 2018, the board served Mr. Furr with a notice to appear at a meeting of the board regarding a proposed termination of his rights in the Co-operative. In the notice, the board alleged that Mr. Furr had breached Co-operative bylaws related to violence, noise, and other prohibited conduct directed at Ms. Pringle and other Co-operative staff. At the meeting on May 30, 2018, the board voted to terminate his membership. On appeal to the membership of the Co-operative, the board’s decision was confirmed by majority vote on July 11, 2018.
[8] Mr. Furr did not vacate his unit. On August 7, 2018, the Co-operative served Mr. Furr with two notices to end his occupancy. The relevant notice for this appeal was based on conduct which “seriously impaired the safety” of Ms. Pringle.
[9] The application to terminate Mr. Furr’s occupancy was heard by Board Vice-Chair Sangmuah on December 4, 7, and 18, 2018. The Vice-Chair agreed that Mr. Furr’s conduct had seriously impaired the safety of Ms. Pringle. According to the Vice-Chair, Mr. Furr’s conduct included “[l]aying siege to the Co-op office in a rage”, which, given Mr. Furr’s animosity toward Ms. Pringle, gave her “good reason to fear the worst.” The Vice-Chair also found that following this specific incident, Mr. Furr “kept harassing [Ms. Pringle] by watching her, recording her movements and making gestures such as holding his hands to his neck on seeing” her. The Vice-Chair rejected Mr. Furr’s argument that termination based on serious impairment of safety was not made out because mere threats, harassment, and other non-physical conduct was not sufficient to constitute serious impairment of safety.
[10] Section 94.12(1) of the RTA gives the Board discretion not to terminate an occupancy where it “would not be unfair” to do so. The Vice-Chair found that it would be unfair to refuse to grant relief under s. 94.12(1) and declined to exercise this discretion. The termination order, dated February 22, 2019, gave Mr. Furr until March 7, 2019 to vacate his unit.
[11] Mr. Furr requested a review of the Vice-Chair’s decision. On March 7, 2019, Board member Mosaheb denied the request on the basis that Mr. Furr had not identified any serious error in the order.
Analysis
Jurisdiction and Standard of Review
[12] It is common ground that the Divisional Court has jurisdiction to hear this appeal under s. 210(1) of the RTA, which provides that a party to an order issued by the Board may appeal to this Court, but only on a question of law. It is also common ground that, since the Supreme Court of Canada’s decision in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, at para. 37, statutory appeals are subject to the appellate standard of review established in Housen v. Nikolaisen, 2002 SCC 33. The standard of review on a question of law is correctness. The standard of review on a question of fact is a palpable and overriding error. A palpable error is one that is obvious, plain to see, or clear. An overriding error is an error that is sufficiently significant to vitiate the challenged finding of fact, such as the absence of any evidence to support the challenged finding.
Serious Impairment of Safety
[13] Section 94.2(1) of the RTA provides that a cooperative may give a member notice of termination of occupancy in enumerated circumstances. The relevant circumstance here involves an act or omission of a member which “seriously impairs or has seriously impaired the safety of any person”.
[14] The appellant has cited a number of Court and Board decisions which attempt to flesh out the context, purpose and meaning of this provision. Statements of this context, purpose and meaning include the following:
(i) the notice period under this provision is short and the statute does not allow for a cure period;
(ii) the issuance of an eviction notice has serious consequences;
(iii) to put someone out of their home calls for clear and compelling circumstances;
(iv) eviction is a limited remedy of last resort, reserved for the most serious conduct;
(v) verbal harassment and threats alone rarely constitute a serious impairment of safety;
(vi) a clear intention to act on threats must be shown; and
(vii) the use of the word “serious” in s. 94.2(1) implies conduct which is “weighty, grave or momentous.”
[15] In the Vice-Chair’s reasons, he concluded that the conduct of the appellant had seriously impaired the safety of Ms. Pringle. He said:
The Co-op Member argued that he did not impair AP’s safety because he did not assault her and that harassment and threats alone do not constitute impairment [of] safety. I disagree. There are many instances where one may seriously impair the safety of a person without physically assaulting the person… Laying siege to the Co-op office in a rage is not just harassment. The Co-op Member intended to seize the membership list because he believed he was entitled to it. Given the Co-op member’s animosity towards AP, the latter had good reason to fear the worst. The co-op member’s subsequent conduct also shows that AP had good reason to fear for her safety.
[16] The appellant maintains that the Vice-Chair, although citing the language of s. 94.2(1), did not apply the test as interpreted by the Board in other cases. The Vice-Chair’s formulation did not, he argues, include the necessary elements of seriousness and gravity and did not address the question of whether there was evidence of an “intention” to act on any verbal threats.
[17] I do not agree with this argument. The Vice-Chair’s formulation of the test falls well within the range of the jurisprudence cited. In 2276761 Ontario Inc. v. Overall, 2018 ONSC 3264, the Divisional Court made it clear that serious impairment of safety includes both actual impairment and a real risk of impairment. In other cases, the Board has held that it is not necessary that anyone has actually been hurt or injured and that a serious impairment of safety may include:
(i) the potential for an outcome that has the risk of a substantial negative effect on a person’s well-being;
(ii) a foreseeable act or omission that could result in or may result in a serious impairment to safety; and
(iii) extremely loud and intense arguments could easily result in violence and would be a safety hazard.
[18] There was no error of law in the Vice-Chair’s formulation of the applicable legal test. The appellant’s real complaint is with the Vic-Chair’s application of this test to the facts. This, however, subject to the next ground of appeal, is not a question of law but a question of mixed fact and law and is, therefore, not subject to appeal under the RTA.
Palpable and Overriding Error
[19] The appellant next argues that the Vice-Chair committed a palpable and overriding error of fact by accepting the evidence of the respondent’s witnesses and rejecting the evidence of the appellant. Specifically, the appellant submits that he had a video (taken on his phone) of the events characterized by the Vice-Chair as “laying siege” to the Co-op office occupied by Ms. Pringle. The appellant submits that his video contradicts the sworn evidence of Ms. Pringle and another eyewitness.
[20] In making this submission, the appellant is asking this Court to re-weigh and reassess the evidence. The fact that there is conflicting or contradictory evidence resolved in favour of one party or another does not constitute palpable and overriding error. There was evidence to support each and every finding of fact made by the Vice-Chair. The Vice-Chair had the opportunity to see and hear all the witnesses in person. His findings about which evidence to accept and which to reject are not subject to challenge.
[21] Further, the appellant’s argument focuses almost exclusively on the one “laying siege” incident at the Co-op office. This ignores the fact that there were multiple incidents occurring over a significant period of time, involving not only Ms. Pringle but others as well, which support the respondent’s position that this problem had reached the point where there was no alternative but to exclude the appellant from the Cooperative and require him to terminate his occupation (This included, I should say, numerous warnings to the appellant of the likely consequences of his conduct).
[22] There was no palpable and overriding error of fact.
Conclusion
[23] For these reasons, the appeal is dismissed. The appellant shall have 30 days to vacate his unit.
Costs
[24] The parties’ joint submission on costs was $13,500 to the Co-op if the Co-op prevailed and $8,300 to the appellant if the appellant prevailed. We are not satisfied that outcome would be appropriate. Costs are awarded to the Co-op in the amount of $8,300 payable within 60 days.
Penny J.
I agree _______________________________
Backhouse J.
I agree _______________________________
Lococo J.
Released: March 9, 2020
CITATION: Furr v. Courtland Mews Cooperative Housing Inc., 20202 ONSC 1175
DIVISIONAL COURT FILE NO.: DC-19-129
DATE: 20200309
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Backhouse, Lococo and Penny JJ.
BETWEEN:
Tom Furr
Appellant
– and –
Courtland Mews Cooperative Housing Inc.
Respondent
REASONS FOR JUDGMENT
Released: March 9, 2020 Penny J.