SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: CV-12-00463266
DATE: 2013/01/11

RE: Rainbow Circle Co-operative Inc.

Applicant

– and –

Yvonne Singh

Respondent

BEFORE: Moore J.

COUNSEL: Paula Boutris, for the Applicant

Yvonne Singh, In Person

E N D O R S E M E N T

[1] Rainbow Circle Co-operative Inc. (“Rainbow”) applies under section 171.13 of the Co-Operative Corporations Act[^1] (“CCA”) for relief including: termination of membership and occupancy rights as of 12 September 2012; a writ of possession; compensation at the rate of $595.00 per month or $19.56 per day from the day of termination of membership and occupancy rights until the date of vacant possession; and, costs of this application.

Background

[2] Rainbow is a non-profit housing co-operative that owns property including 10 Emperingham Drive, Unit 90, in Toronto (“the unit”).

[3] Ms. Singh was a member of the Rainbow Co-operative and enjoyed possession of the unit. She signed an occupancy agreement on 6 July 2007 and moved into the unit with her children in August of 2007.

[4] In June 2012, Ms. Singh was served with a Notice to Appear by which Rainbow engaged the process of termination of her membership and occupancy rights. She was invited to attend a meeting of the Board of Directors on 12 July 2012 and she did attend and she made representations in response to the matters outlined in the Notice, being allegations of nuisance, violence, illegal acts and responsibility for the acts of others, contrary to Rainbow’s by-laws and the Occupancy Agreement.

[5] Ms. Singh attended this meeting with four people to provide information in support of her position.[^2] In addition, the Board welcomed complainants with information of relevance.[^3] The Board arranged to have Ms. Hannant from the Co-Operative Housing Federal of Toronto attend to chair the meeting.

[6] The Board afforded Ms. Singh a full opportunity to respond to each of the allegations detailed in the Notice to Appear and discussed at the meeting[^4]. Having considered the matter, at the end of the meeting, the Board voted to terminate Ms. Singh’s membership and occupancy rights and also decided to suspend the eviction unless and until Rainbow received three further written complaints against Ms. Singh over the year following 12 July 2012.

[7] Rainbow served Ms. Singh with its eviction decision on 15 July 2012. Ms. Singh has not pursued her right to appeal that decision. This raises a fairness issue for Rainbow and its members. Having written to Rainbow that she accepts the decision to evict and waives her appeal rights, she now seeks to undo the process and its outcome. She is effectively making an end run around the process she agreed to be bound by on becoming a member, an appeal to the membership. I infer that she believed that the membership would have supported the Board’s decision to evict her and it is inconsistent with the fundamental nature of a co-operative for its members to have forced upon them the continued membership of someone reasonably found to be in breach of the rules established by the co-operative and binding on all of its members.[^5]

[8] By 27 August 2012, Rainbow received several additional complaints relating to Ms. Singh’s occupancy of the unit and it wrote her therefore advising that the eviction decision was no longer suspended but Ms. Singh remains still in occupancy at the unit.

[9] In her response to this application, Ms. Singh seeks to revisit the allegations raised against her at the meeting of the Board and the information considered.

Analysis

[10] This application is not designed to afford the parties with a fresh opportunity to start the eviction process over; it is not a rehearing of the information addressed by the Board or an appeal of the eviction decision that the Board has made.

[11] Upon the evidence adduced for the hearing of this application, I am satisfied that Ms. Singh was afforded a process leading to and through the meeting of the Board that accorded with the provisions of the CCA and Rainbow’s by-laws and that accorded Ms. Singh natural justice and procedural fairness. The eviction decision was reached reasonably upon the evidence before the Board.

[12] The law is clear that courts should not, in such circumstances, interfere with decisions of non-profit housing co-operatives and, absent compelling circumstances, co-operatives must be allowed to govern their affairs without unwarranted interference by the courts.[^6]

[13] Rainbow asserts that it has acted fairly, reasonably and in compliance with the CCA in ending membership and occupancy rights in this case and adds that where, as here, it has acted under rules adopted by its member, its decision must be respected, unless the decision is unreasonable, made in breach of the principles of natural justice and fairness or in bad faith, based on extraneous considerations or a failure to consider a controlling issue or an egregious breach of public policy.[^7] I agree and find that Ms. Singh has not met her burden to establish that the process and decision in question in this application fail to measure up to these standards.

[14] I accept the principle that the rights of a member facing eviction must be balanced against the rights of other members of the Co-op, including their interests in preserving the peace and for a comfortable, financially sound family community. In Tamil, Hoilett J. incorporated by reference the analysis of Molloy J. on this point and articulated the democratic character of a co-operative that is its very raison d’être:

….Housing co-operatives are democratic organizations. The members of the co-operatives elect a board of directors from the membership. Each member has one vote. The members can requisition meetings of the members and meetings of the Board and can by vote remove or replace some or all members of the Board. The relationship between the members and the co-operative is based on a concept of collective co-ownership. The members are, in essence, both landlord and tenants. They have a right of occupancy and security of tenure and they also, as part of the collective, have a right to participate fully in management. The Co-operative’s by-laws and regulations are not effective until confirmed by the members at a general meeting. As long as members/occupants are in compliance with those by-laws and regulations they have the right to exclusive occupation of their units and the common facilities.[^8]

[15] In this case, the Board afforded Ms. Singh a full and fair opportunity to address the concerns before it relating to her occupancy of the unit and it weighed her position along with those of the Co-op and the best interests of its members and decided that the best interests of all concerned were best advanced by terminating Ms. Singh’s membership. A democratic process unfolded and I see no basis to intervene in the outcome.

[16] As was the situation in Courtland Mews,[^9] while the Board’s decision to evict might not have been justified on the basis of some of the twenty breaches alleged individually, the decision to evict is clearly not patently unreasonable considering all of the breaches together.

[17] Ms. Singh raised, for the first time upon this application, concerns of bias on the part of other members, including Ms Pihl and Ms. Dunnett. I am not satisfied that any member individually or the Board was moved by bias for or against the interests of Ms. Singh in their determination of the issues before them in this matter.

[18] Rainbow allowed and encouraged matters of complaint extant in 2010 to go before a mediator. The process did not succeed but the fact that it was embraced is an indicator of Rainbow’s interest in dealing fairly with complaints then in question.

[19] Rainbow added a measure of objectivity and impartiality into the eviction hearing itself by bringing in Ms. Hannant to chair the meeting. Ms. Singh and her supporters were welcomed and afforded the opportunity to participate. The minutes demonstrate that Ms. Singh indeed did participate and addressed each of the complaints raised in the Notice to Appear.

[20] Further, there is no evidence to support an assertion of serious personal bias on the part of any member on the Board deciding this case[^10] and the fact that members had interactions with one another over their years of living together in a co-operative housing community is simply not a reason for members to recuse themselves from a Board meeting, including an eviction hearing. Absent cogent evidence of bias, to hold otherwise would impede and potentially do serious harm to the democratic, rules based, environment that all members have voluntarily chosen to live by.

[21] Although there was information submitted at the Board meeting that Ms. Singh was recently hospitalized at the time of at least one of the incidents complained of, the Children’s Christmas party, there was no evidence that her conduct or mental functioning were adversely influenced by medication or that she otherwise suffered from a physical or mental infirmity of relevance or that her condition creates a hardship situation for her in responding to the many complaints that the Board considered or in responding to the Board’s decision to evict. To the contrary, Ms. Singh submitted to this court that her conduct and mental acuity at that party were entirely appropriate.

[22] The monthly housing charge for the unit was $595.00 until recently but that was a subsidized rate. As of November 2012, Ms. Singh decided to terminate her subsidy entitlement with the result that she now pays market rate rent of $1020.00 per month. This rate will apply to any arrears owing as at the date that Ms. Singh provides Rainbow with vacant possession of the unit. As of today’s date, Ms. Singh is not in arrears.

Disposition

[23] The Rainbow application succeeds and an order shall issue in its favour declaring Ms. Singh’s membership and occupancy rights at an end, granting a writ of possession, awarding Rainbow compensation for Ms. Singh’s ongoing occupation should arrears arise and Rainbow shall recover its costs of this application, if demanded. If the parties cannot agree on costs issues, I may be spoken to and will direct a process to fix costs.

Moore J.

DATE: 11 January 2013

[^1]: R.S.O. 1990, c. C.35

[^2]: Ezra & Darcia Singh, Steve Rankin and Geanna Samuel

[^3]: Marc & Deanna Gervais, Marcia Briscoe, Michelle Pulford, Vicki Humphrey and Karen Clarke.

[^4]: 20 complaints in total, as summarized in the Factum, 15 November 2012, at para. 11.

[^5]: Courtland Mews Co-Operative Homes Inc. v. Wood, 2010 CarswellOnt 11036 (O.S.C.), at paras. 31 and 32.

[^6]: Forestwood Co-operative Homes Inc. v. Blake, CarswellOnt 900 (Ont. Div. Ct.) at paras. 16 to 19.

[^7]: Tamil Co-operative v. Kandiah, 2003 CarswellOnt 3395 (Ont. S.C.J.), at para. 14

[^8]: Wilcox, Supra, at para. 16.

[^9]: Courtland Mews Co-Operative Homes Inc. v. Wood, 2010 CarswellOnt 11036 (O.S.C.), at para 28.

[^10]: Cooperative d’habitation Lafontaine Inc. v. Menard, 2003 43631 (ONSC), at paras. 29 and 30.