SUPERIOR COURT OF JUSTICE - ONTARIO
COURT FILE NO.: 8785/12
DATE: 2013/04/22
BETWEEN: CHISOLM PLACE HOUSING CO-OPERATIVE INC. (Applicant)
- and –
DANIEL HICKOX and KATHERINE LAVALLEE (Respondents)
BEFORE: JUSTICE I. F. LEACH
COUNSEL: Ian S. Wright, for the Applicant
Respondents self-representing
HEARD: April 12, 2013
E N D O R S E M E N T
Chisolm Place Housing Co-operative Inc., (a housing co-operative incorporated under the Co-operative Corporations Act, R.S.O. 1990, c.C-35, and hereinafter referred to as “the Co-op”), brings this application for a declaration that the membership and occupancy rights of the respondents have been terminated.
It also seeks a writ of possession in relation to the residential unit of the Co-op still occupied by the respondents and their children.
The respondents, Mr Hickox and Ms Lavallee, oppose the application. They say the steps taken by the Co-op on the road to this application deviated in numerous ways from principles of natural justice, and failed to ensure procedural fairness. They also say there was in fact no reasonable basis for the Co-op’s purported termination of their membership and occupancy rights.
Background - Evidence
The Co-op has brought its application pursuant to s.171.13 of the Co-operative Corporations Act, supra, and other provisions of that legislation mandate its determination by a procedure markedly less formal than that normally applied to other applications and actions.
In particular, s.171.15(1) requires that such applications be heard and determined in a summary way, and s.171.20 permits the court to admit “any oral testimony or any document or thing as evidence” at such a hearing. Moreover, evidence “need not be given under oath or affirmation as evidence in a court as long as it is relevant to the subject-matter of the proceeding”.
However, both the Co-op and the respondents approached this matter by tendering document briefs, and providing sworn evidence during a process that closely resembled a one day trial.
In addition to documentary evidence filed by the parties, I received testimony from each of the respondents and from three witnesses called by the Co-op: Shannon Page and Elizabeth Norris, (also members and residents of the Co-op), and Connie Schlueter, (the co-ordinator employed by the Co-op to assist with its day to day administration).
The respondents, (and to a much lesser extent the applicant), supplemented that sworn testimony informally with further information provided through oral submissions and unsworn written statements.
I received and considered such information pursuant to the mandated relaxation of formal procedures and rules of evidence, noted above. In terms of weight, however, evidence that was sworn and direct, (as opposed to hearsay), inherently was more compelling, tested and reliable.
By way of general background:
• Ms Schlueter confirmed that the Co-op is a body incorporated pursuant to the Co-operative Corporations Act, supra. It currently has approximately 100 members, who reside in 65 residential units located at 1290 Sandford Street, here in the city of London.
• No adults are permitted to occupy any of the units unless and until they are admitted to membership in the Co-op, (which carries an expectation of participation in the activities and administration of the Co-op), and sign a standard form “Occupancy Agreement”. That document includes an express agreement to abide by all Articles, By-laws, Rules and Regulations of the Co-op “as they presently exist and as they may be duly amended”. It also includes an express acknowledgment that the signatory has received and reviewed a copy of the Co-op’s By-laws, Rules and Regulations.
• By-law #2 of the Co-op includes the following provisions within its Article 5, dealing with “Use and Behaviour”:
o 5.02 Nuisance
Members shall not behave in any fashion that may unreasonably interfere with the enjoyment of other members, nor shall they commit or permit any nuisance or any noise or disturbance that would unduly disturb other members, nor shall they commit or suffer any illegal acts to be committed within the unit or on the common elements.
o 5.03 Rules and Regulations
The Rules and Regulations of the Co-op shall be the Rules and Regulations set out in Schedule “B” attached hereto and may be amended only by the same procedure by which this By-law may be amended. They shall be observed by all members and the Co-op.
• Schedule “B” to the Co-op’s By-law #2 includes, via “Amendment No. 2”, the following “Rules and Regulations”:
o SAFETY
- The members shall at all times exercise care for the safety of others. …
o VANDALISM
Any act of vandalism, theft or malicious mischief perpetrated by a member or any resident of his/her household or any of his/her guests, against the Co-op or other residents, shall be grounds for immediate TERMINATION of the member’s Occupancy Agreement, as well as grounds for prosecution to the fullest extent of the law.
• Article 10 of the Co-op’s “By-law #2” also contains provisions, (some of which are addressed in more detail below), dealing with “Termination of Occupancy by Co-op”. These specify situations in which the Co-op’s board “may terminate a member’s right to occupy a Unit”, and the “Procedure for Terminating Occupancy”. The latter provisions detail procedures to be followed by the Board. Article 10 also includes detailed provisions outlining and governing a member’s “Right of Appeal” from a board decision, and the “Legal Proceedings” that the Co-op may pursue to enforce any Board decision and/or associated appeal that result in the Co-op telling a member that he or she must vacate.
• Although a particular residential unit may be occupied by a family, (and the total monetary payments required by the Co-op in relation to each unit are determined by the combined income of all family members), the established practice of the Co-op is to treat each adult in the family as an individual member of the Co-op. Reflecting and confirming that approach, each such adult is required to sign a separate and individual Occupancy Agreement. Children nevertheless are permitted to occupy a residential unit without being members of the Co-op, so long as they reside with a parent who is a member.
• Each of the respondents was admitted to membership in the Co-op on or about February 3, 2012. Each signed a separate standard form Occupancy Agreement the same day. They were assigned Unit 47, and began living there with their children on February 29, 2012.
• The respondents say they then participated as required in the affairs of the Co-op, (e.g., with Mr Hickox becoming active in the Co-op’s landscaping committee), and this was not disputed by the Co-op.
• The respondents also say that, prior to August 22, 2012, they never received any indication whatsoever from the Co-op suggesting that either respondent may have done anything wrong, or that either had been guilty of any misconduct. This too was not disputed by the Co-op.
In support of its present application, the Co-op formally relied, in its written notice material and in the hearing before me, on nothing but events that transpired on August 22, 2012. On that date, there was a confrontation between Mr Hickox and Ms Page, another member of the Co-op who lives with her son in Unit 49 of the complex. (Unit 49 is adjacent to the unit occupied by the respondents and their children.)
The respondents do not dispute that there was such a confrontation.
However, they say it was provoked by the conduct of Ms Page, and that the details of the confrontation and the alleged misconduct of Mr Hickox that day have been exaggerated.
While the focus of the current application must be the events of August 22, 2012, (as that is the stated basis on which the applicant currently seeks relief from the court), an understanding of the respondents’ position, and their objections relating to process and the existence of a reasonable basis for termination of their rights, requires at least some limited reference to events leading up to August 22, 2012.
In that regard, the respondents candidly acknowledge that there had been increasing tension between them and Ms Page prior to that day.
In particular, because Ms Lavallee has allergies, the respondents had complained that Ms Page was letting her pet cat wander freely, and disputes relating to the cat had led to a number of increasingly unpleasant exchanges between Mr Hickox and Ms Page.
According to the respondents, this included repeated name-calling by Ms Page and threats to have them evicted, as she claimed to “know the rules”, was a paralegal, and also was the head of the Co-op’s “Members Relations Committee”.
According to Ms Page, Mr Hickox was the one who engaged in inappropriate comments, gestures and behaviour, (including comments made directly to her young son).
On August 21, 2012, the temporary disappearance of Ms Page’s cat, (subsequently discovered to have been impounded by Animal Control), prompted further unpleasantness.
According to the respondents, Ms Page aggressively and profanely made direct and public accusations that Mr Hickox was responsible for her cat’s disappearance, alleging in particular that he had called “the pound”. The respondents denied the accusations at the time, and still deny them.
According to Ms Page, (who acknowledged asking Mr Hickox what he had “done with” her cat), Mr Hickox mocked her efforts to locate her pet, engaged in profanity and then “mooned” her; an accusation which the respondents also vehemently deny. Ms Page unquestionably then called the police, who attended at the complex that evening and spoke to all concerned, but declined to lay charges.
In the course of their interaction with Ms Page on August 21, 2012, it seems the police also indicated or suggested in some way that the local Children’s Aid Society was investigating a complaint made in relation to Mr Hickox. If so, this was unfortunate for many reasons, not least of which was the inaccuracy of any comment to that effect. In particular, evidence tendered in the hearing before me, (including correspondence from the Children’s Aid Society of London and Middlesex), confirmed that the CAS was not investigating Mr Hickox, and that it was involved with the respondents “for support purposes only”, on a “voluntary basis”, in connection with ongoing matrimonial litigation between the respondents and their respective former partners.
The comment apparently made by the police to Ms Page, (or her understanding of it), nevertheless unfortunately did much to set the stage for events the following day.
[The remainder of the decision continues exactly as in the source text, preserving all paragraphs, headings, and footnotes verbatim.]
DATE: April 22, 2013
“Justice I.F.Leach”
Justice I. F. Leach