ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO: CV-11-432644
DATE: 20120106
B E T W E E N:
Ellen McGreal Housing Co-Operative Inc. Applicant - and - Elizabeth Kubo-Bunzigiye Respondent
Bruce D. Woodrow, for the Applicant
In Person
HEARD: December 8, 2011
B. O’Marra J.:
[1] The applicant is non-profit housing cooperative (the “Cooperative”) and the respondent is a member of the Cooperative. The Cooperative is governed by a board of directors (the “Board”) and is democratically elected from among the members of the Cooperative. The Board had authority to make bylaws, some of which govern the power to evict members from occupancy. Decisions to evict are governed by the bylaws and the Cooperative Corporations Act (the “Act”).
[2] The Cooperative owns a property consisting of 160 residential units at 245 Brenyon Way, Toronto, including unit #129 (the “unit”).
[3] The relationship between the Cooperative and its members occupying units is defined primarily by an Occupancy Agreement and the bylaws of the Cooperative.
[4] The respondent was a member of the Cooperative and occupied the unit at all material times.
[5] On March 29, 2010, the respondent signed an Occupancy Agreement with the Cooperative and was given a copy of the bylaws.
[6] The respondent commenced occupancy in April, 2010.
[7] Pursuant to an agreement with Canada Mortgage & Housing Corporation, the Cooperative provides subsidies to some members so that the monthly housing charge is geared to income.
[8] The respondent does not currently receive a subsidy. The full monthly housing charge for the unit is currently $930.00 (including $35.00 for cable charges).
[9] The bylaw states that the monthly housing charge for the unit is due and payable in advance to be delivered to the Cooperative by the first day of the month.
[10] The bylaw provides that the Board may decide to evict a member if the member is in arrears or has repeatedly failed to pay monthly charges or other charges in full and on time.
[11] As of August 11, 2011 the respondent was in arrears in the amount of $3,681.00. As of December 8, 2011 when this application was heard, those arrears are still outstanding. Since July of 2011, the respondent has made her regular monthly payments.
[12] In the 10 month period from September 2010 through June of 2011, the respondent breached her obligation to pay in full and on time on numerous occasions as follows:
a) Late payment – 5 months
b) No payment – 2 months
c) Partial payment – 5 months
In that 10 month period the respondent paid her charges in full and on time only once.
[13] On June 3, 2011, the respondent was served with a Notice to Appear with a proposed termination date of June 23, 2011. This Notice advised the respondent that she could appear at a board meeting on June 13, 2011 to make representations regarding the termination. The grounds for termination were arrears and repeated failure to pay in full and on time. These are grounds for eviction in accordance with the bylaw.
[14] The meeting of the Board took place on June 13, 2011 with the respondent in attendance. The respondent made submissions about her problems with her social assistance from Ontario Works, but was unable or unwilling to make a proposal to repay her arrears. The Board ultimately decided by a majority vote to terminate the membership and occupancy rights of the respondent effective June 23, 2011.
[15] On June 15, 2011, the respondent was served with a Notice of Eviction decision terminating her membership and occupancy rights effective June 23, 2011. This Notice included a copy of the Board of Directors Eviction decision.
[16] The Act allows a member to appeal an eviction decision by the board of directors to a general meeting of the members of the Cooperative. A request for such an appeal must be in writing and received by the Cooperative within 7 days of service of the Board of Directors Eviction decision.
[17] The Cooperative received a letter dated June 16, 2011 from the respondent appealing the eviction decision of the Board. The letter includes the following:
• Reference to the Board meeting of June 13, 2011 as a “sham” and the decision unreasonable, immoral, ridiculous, unfair, unjust and illegal.
• Asks about her deposit cheque for “upwards of $1,200” for last month’s rent.
• Refers to her situation as a single mother of 3 children (now ages 11, 9 and 7 years).
• Claims she made it clear from the onset of her residency that she required a subsidy that would have required her to pay $300 in subsidized rent as opposed to $970.00 required by the Cooperative.
• Adamant about proceeding with the Appeal.
[18] By letter dated June 29, 2011, the Cooperative confirmed receipt of her letter of June 16, 2011 and advised she could submit a revised letter for distribution to the membership if she wished since her original letter contained some personal information. The respondent was also advised that she had until July 8, 2011 to file a further letter. The respondent was also advised that the last month’s housing charge is a deposit and is only returned after she vacates her unit.
[19] On July 8, 2011, the Cooperative received a new letter from the respondent that referred to the following:
• That there were no grounds to evict her.
• The eviction was arbitrary and unjust.
• Claims she is on the Cooperative’s subsidy waiting list - that she started at #23 and now moved up 10 spaces.
[20] The Cooperative called a general meeting for July 21, 2011 at 7 p.m. At least 10 days before that date the Cooperative distributed to each unit a copy of a Notice of Meeting and proposed agenda that included the respondent’s Appeal and eviction and supporting documents.
[21] The bylaw stipulates that the quorum for a general meeting is 15% of membership and a quorum must be present within 30 minutes of the scheduled start time for the meeting.
[22] On July 21, 2011, the Cooperative had 233 members and, therefore, required 35 members for a quorum. As of 7:32 p.m. only 20 members had signed in, including the respondent. With a failure to achieve a quorum, the Chair declared the general meeting cancelled and advised the members present that the eviction decisions were deemed to be upheld in accordance with Article 45 (E) and (F) of the bylaws of the corporation. The new eviction date became July 23, 2011.
[23] In the response to Appeal from the Cooperative regarding this eviction the following points were made:
• The Cooperative is in a serious financial situation and losses from arrears have to be covered by other members through their housing charges.
• Eviction decisions are not made lightly.
• An agreement to avert or postpone an eviction decision must include a workable plan to pay off arrears.
• The respondent is in arrears of $3,681.00 or nearly 4 months housing charges.
• Since October of 2010 payments have been sporadic and usually less than the full housing charge.
• At the meeting held on June 13, 2011 the respondent did not make a proposal to repay her arrears or assure the Board that she could pay future housing charged in full and on time.
• The Cooperative has a waiting list for subsidy, but the person at the top of the list has been on the list since 2008. It will likely be years before the Cooperative can offer a subsidy to the respondent.
[24] The respondent remains in possession of the unit.
Analysis
[25] Judges will defer to an eviction decision made by a non-profit housing cooperative because of its democratic self-governing nature. Windward Cooperative Homes Inc. v. Shuster, 2007 8010 (ON SCDC), [2007] O.J. No. 967 (Ont. Div. Crt.) at para. 11 ; McBride v. Comfort Living Housing Cooperative Inc. (1992), 7 O.R. (3d) 394 pp. 400-410.
[26] The standard of review of a decision of the Board is whether the decision is unreasonable. David B. Archer Co-Operative Homes Inc. v. D’Oliveira, 2003 21004 (ON SCDC), [2003] O.J. No. 1469 paras. 5 & 17.
[27] I find the Cooperative’s decision to evict the respondent was reasonable. It was based on the bylaws governing eviction which permit eviction if the member fails to pay their housing charges in full and on time or continues to be in arrears.
[28] The discretion of the court to refuse an eviction is to be exercised only where granting the eviction would be unfair in all the circumstances.
S. 171.21(1)(A) of the Act. Many of the cases where courts have refused to uphold orders of eviction were ones where the member had lived in the cooperative for many years or the problems were a function of the tenant’s health difficulties. Those circumstances do not exist in this case. Hugh Garner Housing Cooperative Inc. v. Scholar, [1997] O.J. No. 4531 ; David B. Archer Cooperative Inc. v. D’Oliveira, supra.
[29] The respondent was present and made submissions at the Board meeting that decided her eviction. She was given proper notice of that process. The respondent has referred to her financial hardship and the court recognizes that there will be inconvenience and expense in moving out and finding a new residence. The unfortunate fact is that most evictions cause financial and emotional hardship to those evicted. Absent evidence of further exceptional circumstances, this is not a basis for a claim of unfairness. Windward Cooperative Homes Inc. v. Shuster, supra, at para. 34.
[30] The decision of the Board based on the particular facts and in light of the applicable bylaws was both reasonable and fair.
Disposition
[31] Application granted and order to go as follows:
The respondent’s membership in the Cooperative is terminated effective as of the date of this judgment.
Writ of possession is to issue, not to be effective before February 29, 2012.
The respondent is ordered to pay the sum of $3,681.00 being arrears owed as of December 8, 2011.
The respondent is to pay the sum of $31.89 for every day of further occupancy from the date of release of this judgment to the day vacant possession is delivered up.
Costs
[32] The Cooperative seeks costs on a substantial indemnity scale. The financial hardship of such a costs order is one aspect of the court’s discretion in this matter. The objective of a determination in costs is to fix an amount the unsuccessful party is required to pay that is fair and reasonable rather than reflecting the actual costs of the successful party. Boucher v. Public Accountants Council for the Province of Ontario (2004), 71 O.R. (3d) 291.
[33] Costs are fixed at $7,500 all in.
B. O’Marra J.
Released: January 6, 2012
COURT FILE NO: CV-11-432644
DATE: 20120106
ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N:
Ellen McGreal Housing Co-Operative Inc. Applicant - and - Elizabeth Kubo-Bunzigiye Respondent
JUDGMENT B. O’Marra J.
Released: January 6, 2012