ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 12-00444523-0000
DATE: 20120612
APPLICATION UNDER section 171.13 of the Co-operative Corporations Act with respect to the Member unit described as Unit 1506, 2040 Don Mills Road, in the City of Toronto, in the Province of Ontario, M3A 3R7
BETWEEN:
DUNCAN MILLS LABOURERS’ LOCAL 183 CO-OPERATIVE HOMES INC. Applicant – and – CHANTALE CAFÉ Respondent
Daniel Iny , for the Applicant
Chantale Café , in-person as self-represented
HEARD: May 24, 2012
B. P. O’marra j.
reasons for decision
[ 1 ] The Applicant co-operative seeks the following:
A declaration that the Respondent’s membership and occupancy rights are terminated.
Writ of Possession
Arrears
Costs
the facts
[ 2 ] The Applicant is a non-profit co-operative incorporated without share capital under the Co-operative Corporations Act of Ontario (“the CCA”) and is the owner of the property located at Unit 1506, 2040 Don Mills Road, Toronto (“the Unit”).
[ 3 ] Member units occupied by members of the co-operative are subject to the CCA and not the Residential Tenancies Act of Ontario.
[ 4 ] The relationship between the co-operative and its members is defined primarily by an Occupancy Agreement and the co-operative’s by-laws and policies.
[ 5 ] The Respondent was a member of the co-operative and has occupied the Unit at all material times.
[ 6 ] The Respondent and her son Ricardo Café signed an Occupancy Agreement with the co-operative on May 1, 2004 with respect to the Unit. Ricardo Café ceased to be a member of the co-operative on July 31, 2009.
[ 7 ] The total monthly housing charge for the Unit is currently $1,049 or $34.49 per day.
[ 8 ] The Occupancy by-law provides that the monthly housing charge for the Unit is due and payable on or before the closing of business on the first day of each month.
[ 9 ] As of January 31, 2012 the Respondent is in arrears for housing charges in the amount of $3,416. Further arrears accumulated as of May 16, 2012 less a payment of $1,770 received.
[ 10 ] The Respondent has been in arrears for significant periods of time since May of 2004. There were late payments, late partial payments and months when her cheques were returned marked “insufficient funds”.
[ 11 ] Since July of 2008 the Respondent has made her monthly charge payments late on 33 occasions. Eleven of those late payments were partial payments. In August of 2010 she made no payment whatsoever.
[ 12 ] From July of 2004 through July of 2011 seven payments were returned as “insufficient funds”.
[ 13 ] The Respondent’s account has been in arrears for the following time periods:
January 2009 to February 2009
July 2009 to January 2010
February 2010 to December 2010
July 11, 2011 to the present
[ 14 ] On July 21, 2009 when the Respondent’s son, Ricardo moved out of the co-operative it came to the attention of the co-operative that the Respondent was over-housed in a two bedroom unit. At that time, and until the present, the co-operative offered the Respondent a one-bedroom unit that would better suit her needs. The Respondent refused this offer on four occasions. Her monthly charges would have been less in the one bedroom unit.
[ 15 ] On September 8, 2011 the Respondent was served with a Notice to Appear with a proposed termination date of October 3, 2011. The grounds set out in the notice were the arrears then owing, plus the repeated late payments. The Notice advised the Respondent that she could appear at a meeting of the Board of Directors of the co-operative on September 21, 2011 to make representations on the proposed termination.
[ 16 ] The Board of Directors met on September 21, 2011. The Respondent did not attend. By majority vote the Board decided to terminate the membership and occupancy rights of the Respondent effective October 3, 2011.
[ 17 ] On September 23, 2011 the Respondent was served with the Notice of the Board’s decision terminating her membership and occupancy rights as of October 3, 2011. This Notice and the earlier Notice to Appear both refer to appeal procedures. The Respondent has not appealed the decision of the Board.
[ 18 ] The Respondent remains in possession of the Unit.
position of the parties
[ 19 ] The Respondent appeared on this application on her own behalf. In very articulate fashion she did not dispute the history of arrears and late payments but urged this Court to allow her to stay in the Unit. She advised that her income had been negatively impacted over time by the economy. She advised that she has some positive job prospects and asks for the chance to pay down her arrears and continue with the co-operative.
[ 20 ] Counsel for the Applicant took no issue with the good intentions of the Respondent. The problem relates to chronic arrears and late payments that present significant problems for this non-profit co-operative.
analysis
[ 21 ] Courts will defer to an eviction decision made by a non-profit housing co-operative 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) 1992 7474 (ON CA) , 7 O.R. (3d) 394 (O.C.A.)
[ 22 ] 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 and 17 .
[ 23 ] I find the co-operative’s decision to evict the Respondent was reasonable. The process followed, including notices to the Respondent of the hearing and appeal process, was fair.
[ 24 ] The CCA gives the Court equitable jurisdiction to refuse an eviction in exceptional circumstances.
s. 171.21(1) (a) of the CCA .
Tamil Cooperative Homes Inc. v. Arulappoh [1996] O.J. No. 768 at para. 2 and 59 (Ont. Gen. Div.)
[ 25 ] 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 if that was the case.
Fieldstone Cooperative Homes Inc. v. Rodriquez et al. 2010 ONSC 5283 at para. 13 .
disposition
[ 26 ] Application granted. Order to go as follows:
The Respondent’s membership is terminated as of the date of the release of this ruling.
Writ of Possession to issue to Applicant, not to be effective before July 15, 2012.
The Respondent is ordered to pay arrears of $3,614.84 plus $34.49 per day for each day from and including May 17, 2012 until vacant possession is delivered to the Applicant.
This Judgment bears interest at the rate of 3% per year from the date of the ruling.
Costs of $2,500 all inclusive are payable to the Applicant.
B. P. O’Marra J.
Released: June 12, 2012
COURT FILE NO.: 12-00444523-0000
DATE: 20120612
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
DUNCAN MILLS LABOURERS’ LOCAL 183 CO-OPERATIVE HOMES INC. Applicant – and – CHANTALE CAFÉ Respondent
REASONS FOR DECISION
B. P. O’Marra J.
Released: June 12, 2012