ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CV-11-0402
DATE: 2012-01-19
B E T W E E N:
SUPERIOR VIEW HOUSING CO-OPERATIVE INC.
Christopher D.J. Hacio , for the Applicant
APPLICANT
- and -
SHARON BLACK
Sarah Colquhoun , for the Respondent
RESPONDENT
HEARD: December 15, 2011 at Thunder Bay, Ontario
Mr. Justice J.F. McCartney
Decision on Application
Background
[ 1 ] The Respondent Sharon Black is a member of a co-operative housing corporation in Thunder Bay known as Superior View Housing Co-Operative Inc, the Applicant herein. The co-operative is governed by the Co-Operative Corporations Act .
[ 2 ] Black has been a member and occupant in units in the co-operative since 2002.
[ 3 ] As a member and occupant Black is bound by the provisions of the housing agreement signed by her and dated January 29, 2002, and the rules and regulations pursuant thereto.
[ 4 ] Complaints were made by other tenants starting in 2006 that Black was smoking in the hallways, this affecting the health of other tenants (even thought this was not a smoke free building). Other complaints involve smoke emanating from her apartment into the hallways.
[ 5 ] On November 4, 2007, Black was notified that as a result of the complaints the board of directors would be meeting on November 27, 2007 to consider terminating her occupancy rights. At that meeting, which Black attended, a decision was made, as set out in the board’s letter to Black of November 28, 2007 to postpone eviction proceedings on condition that Black followed the rules and regulations of the corporation. Otherwise, an eviction notice would issue.
[ 6 ] Further complaints came in mostly involving the smoking issue and finally at a meeting on March 30, 2010 without notice to Black, the board decided to evict Black and terminate her occupancy rights as evidenced by the eviction notice sent to her March 31, 2010.
[ 7 ] Thereafter, negotiations took place between counsel to attempt to negotiate a resolution of this dispute, but to no avail.
[ 8 ] The legal issues involved here are as follows
Is the failure to provide notice of the March 30, 2010 meeting fatal to the application?
If the failure to give notice is not fatal, was there an agreement to relinquish Black’s membership and tenancy which she has failed to honour?
In any event, under all the circumstances, should the court grant relief from forfeiture?
[ 9 ] Section 178(2) 3 of the Co-Operative Corporations Act provides the following concerning termination of membership and occupancy rights
“The member shall be given written notice that the board of directors will consider terminating the member’s membership and occupancy rights. The notice must be given at least ten days before the meeting of the board of directors at which the matter will be considered.”
[ 10 ] The Applicant argues that the November 28, 2007 letter to Black is sufficient notice of the board of director’s intention without giving further notice of the meeting of March 30, 2010. I disagree. Considering the history of this case – both before and after the November 28, 2007 letter – it is unreasonable to think that nearly three years after the warning letter, and with new evidence apparently being presented to the board, that the letter of November 28, 2007 should be considered proper notice as required by the Act.
[ 11 ] Furthermore, having read the correspondence between counsel, and considered the submissions on this point, I have come to the conclusion that there was no enforceable agreement between Black and Superior View to voluntarily give up her membership and her tenancy. In his letter of April 27, 2010, counsel for Black stated that “Sharon and I are very grateful that you have been willing to try to resolve the matter through dialogue and negotiation”. Following that letter negotiations continued, the intent of which were that Superior View would allow Black to remain as long as she was actually looking for other accommodation. There was never any firm agreement for her to give up her membership or vacate the premises.
[ 12 ] Considering the reasons set out above, the issue of forfeiture no longer needs to be addressed.
[ 13 ] For all of the above reasons therefore the application is dismissed.
[ 14 ] If the parties are unable to agree on costs, counsel may speak to me regarding same by making arrangements with the Trial Coordinator within the next twenty days.
The Hon. Mr. Justice J.F.McCartney
Released: January 19, 2012
COURT FILE NO.: CV-11-0402
DATE: 2012-01-19
ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: SUPERIOR VIEW HOUSING CO-OPERATIVE INC. Applicant - and – SHARON BLACK Plaintiff DECISION ON APPLICATION McCartney J.
Released: January 19, 2012
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