ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CV-11-00437994-0000
DATE: 20120301
BETWEEN:
HARRY SHERMAN CROWE HOUSING CO-OPERATIVE INC. Applicant/Co-operative – and – THERESA HYLTON Respondent/Member
Celia Chandler , for the Applicant / Co-operative
Theresa Hylton, In Person
HEARD: January 23, 2012
B.P. O’MARRA J. :
NATURE OF APPLICATION
[ 1 ] This is an Application to declare membership occupancy rights in a co-operative terminated as well as other relief.
FACTS
[ 2 ] The Applicant, a non-profit housing co-operative incorporated without share capital owns the property known as 51 The Chimneystack Road, Unit 25, Toronto (the “Unit”).
[ 3 ] Members of the co-operative occupy their units pursuant to occupancy agreements in which members agree to abide by the by-laws of the co-operative. The governing legislation is the Co-operative Corporations Act (the “ CCA ”).
[ 4 ] The Respondent signed an occupancy agreement with the co-operative on November 7, 1997. She became a member and moved into the co-operative on or about December 1, 1997 and secured the right to occupy the Unit subject to the by-laws of the co-operative.
[ 5 ] The total current monthly rate for the Unit is $1,391.00 or $45.73 per day.
[ 6 ] As of July 29, 2011 the Respondent was in arrears in the amount of $17,635.52. She was served with a Notice to Appear that stated there would be a Board of Directors meeting on August 17, 2011 at which time the Board would consider terminating her membership and occupancy rights. The Notice also advised her that she could appear at the meeting and make representations.
[ 7 ] The Board met on August 17, 2011. The Respondent did not attend. The Respondent claims she did not attend the meeting because staff of the co-operative agreed to phone her when the Board was to deal with her matter but failed to do so.
[ 8 ] The Respondent advises she was at home at the time of the meeting. The co-operative denies there was any agreement to call her into the meeting.
[ 9 ] The Board by majority vote decided to terminate her membership and occupancy rights based on the substantial arrears and repeated late payments of housing charges. Those are permissible grounds for eviction under the by-laws of the co-operative.
[ 10 ] On August 18, 2011 the Respondent was served with the Notice of Eviction Decision terminating her membership and occupancy rights as of August 29, 2011.
[ 11 ] The Respondent appealed the decision of the Board to the membership. The meeting failed to achieve a quorum so the decision of the Board was affirmed. This procedure is in accord with s. 171.8(2) 14 of the CCA .
[ 12 ] The Respondent filed materials in the form of a Statement of Defence dated December 21, 2011. She listed concerns she had with the way the co-operative failed to work with her to manage her arrears. She set out a series of concerns as to how the co-operative was managed and that she was not dealt with fairly in the management of her arrears and the termination process. The co-operative responded to these concerns in a Reply Affidavit of Janet Huang sworn January 4, 2012.
Re: Arrears Management
[ 13 ] The co-operative currently has 250 members living in 164 units. There are currently 39 units in arrears. This member’s arrears constitute the vast majority of the co-operative’s total arrears. The average arrears without the Respondent’s are $963.90. With her arrears the co-operative’s average arrears are $1,511.93.
[ 14 ] The co-operative does not have limitless resources available to it to work with individual members. The Respondent has been in arrears since at least July 2007.
Re: Repayment Agreements
[ 15 ] From 2003 to 2009 the Respondent and the co-operative have entered into at least nine repayment agreements. These were attempts to have the Respondent agree to pay down the arrears on a more informal basis before resort to the more formal procedures set out in the by-laws.
Re: Referrals to Outside Funding
[ 16 ] In late 2009 staff at the co-operative facilitated the Respondent’s submission for an “ in situ ” allowance from the City of Toronto. This Application was denied since her loss of income was not related to the economic recession. On April 8, 2011 the staff of the co-operative gave the Respondent a list of resources to explore other sources of short term funding to pay her housing charges.
Re: Invitation to Confirm Ledger
[ 17 ] On January 22, 2010 as part of an internal review of ledgers, the co-operative sent letters to all members inviting them to meet with staff to review ledgers and in the event of discrepancies provide any evidence they might have to support adjustments. The Applicant co-operative reports that neither in response to the January 22, 2010 letter nor any other occasion before or since has the Respondent provided any particulars related to discrepancies in the amounts owing or amounts paid. The internal review uncovered an inadvertent overcharge of $62.00 per month from July 2009 to February 2010. This was identified by the co-operative and not by the Respondent. As a result the Respondent was credited with $496.00 on February 11, 2010.
Prior Notices to Appear
[ 18 ] A Notice to Appear is a mechanism used by the co-operative to open a discussion with a member about housing charge arrears in a more formal way. It can result in decisions to terminate membership and occupancy rights.
[ 19 ] Since 2005 the co-operative has issued five Notices to Appear to the Respondent, including the one that led to this court application. On each of those occasions the Respondent was invited by the Board of Directors to appear at a meeting to review her ledger and discuss her situation with them.
[ 20 ] In three of the cases involving the Respondent the Board either chose not to terminate the membership and occupancy rights but suspended the decision so long as the Respondent met certain conditions.
[ 21 ] On April 16, 2010 the Respondent was served with a Notice to Appear for arrears of $13,610.12. She attended and discussed the matter with the Board. The membership and occupancy rights were terminated but the decision was suspended on conditions.
[ 22 ] On May 19, 2011 the Respondent was served with a Notice to Appear for arrears of $14,785.12. The Respondent was unable to attend. The Board terminated her membership and occupancy rights. Notice of this decision was served on June 6, 2011. The Respondent appealed the decision to the full membership.
[ 23 ] The general members meeting failed to have a quorum but the Board decided to restart the process by issuing a new Notice to Appear to allow further discussion. The Board advised the Respondent of this by letter dated July 19, 2011. That process led to the termination of membership and occupancy rights that is the subject of this Application.
ANALYSIS
[ 24 ] Non-profit housing co-operatives operate through a Board whose members are elected by the members from among the members. Grounds for eviction are set out in the by-laws. Judges will defer to an eviction decision made by a non-profit housing co-operative because of it’s democratic self governing nature: Windward Co-operative Homes Inc. v. Shuster , 2007 8010 (ON SCDC) , [2007] O.J. No. 967 at para. 11 .
[ 25 ] The standard of review of a decision of a Board of a co-operative 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 (Ont. Div. Ct.) at paras. 5 and 17 .
[ 26 ] The occupancy by-law provides that the Board may evict a member who is in arrears and repeatedly failed to pay monthly charges in full and on time.
[ 27 ] The Respondent has accumulated substantial arrears over time. As of January of 2012 the total arrears exceed $24,000.00.
[ 28 ] I find the co-operative’s decision to evict the Respondent was reasonable. The process followed was fair. Over time the Board took significant steps to work with the Respondent towards managing the growing arrears.
[ 29 ] Section 171.21(1)(a) of the CCA gives this Court equitable jurisdiction to refuse an eviction in exceptional circumstances: Tamil Co-operative Homes Inc. v. Arulappoh , [1996] O.J. No. 768 (Ont. Gen. Div.) at paras. 2 and 59 .
[ 30 ] The unfortunate fact is that most evictions cause financial and emotional hardship to those evicted. Without evidence of further exceptional circumstances this cannot be a basis for a claim of unfairness. There would be little basis for an eviction for non-payment or late payment of rent were that the case: Fieldstone Co-operative Homes Inc. v. Rodriguez et al. (2010), ONSC (Sept. 23, 2010) per: Allen J.
DISPOSITION
[ 31 ] Application granted. Order to go as follows:
The Respondent’s membership and occupancy rights are terminated as of the date of release of this judgment.
Writ of possession to issue, not to be effective before March 31, 2012.
The Respondent is to pay to the Applicant arrears and related charges totaling $24,877.23 as of January 20, 2012. Thereafter the Applicant is entitled to further compensation at the rate of $45.73 per day until vacant possession is obtained.
[ 32 ] I will consider brief written submissions as to costs (not more than three pages) to be received at Judicial Administration by March 9, 2012.
B.P. O’MARRA J.
Released: 20120301
COURT FILE NO.: CV-11-00437994-0000
DATE: 20120301
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HARRY SHERMAN CROWE HOUSING CO-OPERATIVE INC. Applicant/Co-operative – and – THERESA HYLTON Respondent/Member
REASONS FOR JUDGMENT
B.P. O’MARRA J.
Released: 20120301