ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CV-13-0298-00
DATE: December 6, 2013
B E T W E E N:
SUPERIOR VIEW HOUSING CO-OPERATIVE INC.
Christopher Hacio, for the Applicant
Applicant
- and -
PAMELA KEEFE
Sarah Colquhoun, for the Respondent
Respondent
HEARD: November 28, 2013
at Thunder Bay, Ontario
Regional Senior Justice H.M. Pierce
Reasons on Decision
INTRODUCTION
[1] The applicant is a housing co-operative governed by the Co-operative Corporations Act. R.S.O. 1990, c. C.35. The respondent, aged 53, occupies a housing unit within the co-operative and has done so for twelve years. She is a recipient of Ontario Disability Support Plan (“ODSP”) benefits and has significant vision impairment and mobility issues that make it difficult for her to climb the stairs to her second floor unit. Ms. Keefe requires assistance with some of her daily living activities, such as walking her dog, shopping for groceries, and getting to appointments. In the past, she has been assisted informally by friends. These arrangements have made the management of the co-operative suspicious that she had unauthorized persons living with her; however these suspicions never gave rise to eviction measures for breach of the applicant’s rules.
[2] Since September 21, 2012, the respondent has been cohabiting with a partner, Ms. Hiltz. Her partner is designated as the respondent’s spouse for purposes of funding under ODSP. She assists the respondent with her needs. Ms. Hiltz is not a member of the co-operative. This circumstance has prompted the applicant to seek a writ of possession for the unit occupied by the respondent. A secondary issue for the co-operative is non-payment of rent by the respondent. While arrears of rent have been an on-going issue, Ms. Keefe has made efforts to repay the arrears. Currently, there is only $100 in arrears of rent, and the co-operative has post-dated cheques to cover the balance.
THE LAW
[3] The process by which the applicant seeks to evict the respondent is not in issue. Section 171.13 (1) of the Act provides that:
After a person’s membership and occupancy rights are terminated or if there is no member occupying a member unit, the non-profit housing co-operative may apply to a judge of the Superior Court of Justice for an order,
(a) declaring that the person’s membership and occupancy rights are terminated or that there is no member occupying the unit , as applicable; and
(b) directing that a writ of possession be issued.
[4] The court may also order payment of arrears of rent or other amounts owing.
[5] The Act gives the court jurisdiction to refuse a writ of possession. Section 171.21(1) provides:
Upon an application by a co-operative for a writ of possession relating to a member unit, a judge may, despite any other provision of this Act or the co-operative’s by-laws,
(a) refuse to grant the application if he or she is satisfied, having regard to all the circumstances, that it would be unfair to grant it;
(b) order that the enforcement of the writ of possession be postponed for a period not exceeding one week.
[6] The standard of review applicable to the court reviewing the decision of the co-operative’s board of directors is reasonableness: Forestwood Co-operative Homes Inc. v. Blake, [2010] O.J. No. 2762 (S.C.J.), para. 16. In Forestwood, the court approved of a deferential approach to the decision of the board of directors to terminate membership and occupancy rights. At para. 18, the court cited with approval the decision of the Divisional Court in Ryegate (Tecumseh) Co-operative Homes Inc. v. Stallard, 2000 30138 (ON SCDC), [2000] O.J. No. 5423, para. 35 – 38:
Absent bad faith, dishonesty, reliance on a matter outside the proper scope of consideration, failure to consider some controlling issue, or some egregious breach of public policy, it is not for the court to substitute its own view of what is reasonable for the view of those who have democratically agreed to live together under a common set of mutual obligations.
Typical reasons for eviction of a member include:
• arrears of rent;
• verbal abuse of others by the member and his guests;
• noise or nuisance that interferes with other members;
• misconduct warranting police attendance;
• harassing and threatening behaviour;
• damage to property; or
• failure to keep the member’s unit clean.
See: Forestwood, para. 20; Changemakers Co-operative Homes (Kitchener) Inc. v. Andrassy [1999] O.J. No. 791 (S.C.J.), para. 8.
THE ISSUES
[7] Each occupant of the co-operative must sign a housing agreement as a condition of occupation. The respondent is no exception. Two terms in the housing agreement are specifically relevant to this application. Article 5 restricts the right of occupancy to persons listed on the application form; in this case, the respondent, alone, is named on the agreement. Article 11 requires that any adult residing in the Co-op for more than thirty days must apply and be accepted for membership and pay dues accordingly.
[8] The board of directors of the co-operative voted twice to terminate the respondent’s membership and occupancy rights. The first eviction decision arose as a result of the respondent permitting a non-member, Ms. Hiltz, to remain in her unit beyond thirty days. On October 22, 2012, Ms. Hiltz applied to the co-operative for membership but was refused without reasons being given. That refusal is not before the court, but it is relevant to the co-operative’s decision to evict the respondent: the co-operative takes the position that the respondent is harboring an illegal occupant, and that the breach of the housing agreement threatens the public funding available to the co-op.
[9] The evidence is that Ms. Hiltz is liked and accepted by several neighbours at the co-operative who describe her as friendly and helpful.
[10] The evidence also demonstrates that the respondent and her spouse recognized the thirty-day rule and attempted to regularize Ms. Hiltz’s occupation. In submissions, counsel for the applicant submitted that Ms. Hiltz only offered one reference, for her application, not two. At that time, she was new to both the building and the community. It is evident from four letters of support attached to the respondent’s affidavit that at least two references would now be available. But for the applicant’s unexplained refusal of Ms. Hiltz’s application for membership, there would have been no grounds for the first decision to evict the respondent.
[11] The respondent submits that she has been discriminated against on the grounds of marital status and disability, in that the applicant has failed to provide her with a ground floor unit to accommodate her disabilities. She also argues that having a live-in care giver is a reasonable arrangement in light of her disabilities, which should be accommodated. These submissions are offered as a shield to the application, not in order to secure a main floor unit. The respondent concedes that she is able to manage adequately once inside her second floor unit.
[12] The applicant concedes that Ms. Keefe’s disabilities are sufficient to engage the Ontario Human Rights Code, R.S.O. 1990, c. H.19.
[13] In August, 2012, the applicant cancelled the respondent’s rental subsidy. This cancellation pre-dated Ms. Hiltz’s arrival. It was done based on the applicant’s suspicion that the respondent had an informal care-giver, Ms. Trenchard, living with her, a charge the respondent disputes. The respondent has been paying market value rent since, so the applicant is not prejudiced financially.
[14] Since the eviction decisions have been communicated, the respondent has been searching for alternate accommodation, to no avail. Her limited financial means militate against saving first and last months’ rent while paying her current rent. The scarcity of affordable housing in the city makes searching for a new apartment a daunting task. Because of her difficulty climbing stairs, the respondent needs a ground floor apartment. That limits the search even further. If the application is granted, there is a real risk that the respondent will be homeless.
DISCUSSION
[15] In this case I have decided that the decision of the board of directors to terminate the respondent’s membership and right of occupation is unreasonable, such that relief from forfeiture should be granted.
[16] With respect to the first ground for eviction, there is no evidence that the respondent behaved in a way that was objectively offensive to her neighbours at the co-operative. While the foregoing list of offensive conduct is not exhaustive, it conveys a flavour of the type of behaviour that could be considered objectionable.
[17] The respondent’s chief offence seems to be that she called on friends to assist her with walking her dog, grocery shopping, or other activities of daily living. The respondent denies that her previous caregiver, Ms. Trenchard, lived in her unit for more than thirty days, contrary to the co-operative’s bylaws. She acknowledged, however, that Ms. Trenchard attended at her home daily to offer assistance. To address this situation, the applicant revoked the respondent’s housing subsidy and charged her rent of $630 per month, effective November, 2012. The respondent has paid the increased rent. Ms. Trenchard ceased to act as a care giver.
[18] The board of directors appeared to have based its first decision to evict the respondent on the Trenchard complaints which have been resolved. No reasons were advanced for the board’s refusal to accept Ms. Hiltz’s application for membership and the board used its refusal to accept the respondent’s spouse as a member in order to justify its decision to remove the respondent.
[19] There is no evidence that the board considered Ms. Hiltz to be in a spousal relationship with the respondent, supported on her ODSP benefits with the concurrence of ODSP personnel. It does not appear that Ms. Hiltz’s application for membership was considered on its merits. The respondent states in her responding affidavit:
We were very dismayed when the Superior View Board advised Ms. Hiltz, in early January, 2013, that they were not accepting her membership application. Ms. Nett was very clear in conversations with us that the application was being denied not because Ms. Hiltz would not be a good member, but because Superior View wanted to make me move.
[20] There is no evidence that Ms. Hiltz was unsuitable for membership; indeed, the evidence is to the contrary. There are no issues about conduct or over-crowding. Nor is there any evidence that the applicant’s funding has been jeopardized by this living arrangement. I conclude that the board of directors relied on a prior complaint concerning Ms. Trenchard that was outside the proper scope of their consideration in judging Ms. Hiltz’s suitability for membership and then using that decision as a ground to evict the respondent. In my view, the conduct of the board of directors was unreasonable in these circumstances.
[21] The consequences of the board’s second decision to evict the respondent flow from the first. Having been advised that her membership and occupancy rights were terminated, the respondent was instructed to vacate her unit and look for alternate housing. She has tried to find other housing, but could not secure another apartment without paying first and last month’s rent. Her income is well below the poverty line. It is impossible for her to secure alternate housing without a down payment, which she must save from her limited income. The respondent is impoverished and disabled. If she is evicted, she may well become homeless.
[22] The applicant cannot expect that on-going rent will be paid while the respondent is trying to save money to move out. Ms. Keefe has since paid the applicant all but $100 of the accumulated arrears of rent and has given the co-operative post-dated cheques for the balance.
[23] The application for a writ of possession and other relief is dismissed. If the parties cannot agree on costs, either may apply to the trial coordinator within thirty days for an appointment to argue costs, failing which costs will be deemed to be settled.
“Original Signed By”
Regional Senior Justice H.M. Pierce
Released: December 6, 2013
COURT FILE NO.: CV-13-0298-00
DATE: December 6, 2013
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
SUPERIOR VIEW HOUSING CO-OPERATIVE INC
Applicant
- and –
PAMELA KEEFE
Respondent
REASONS ON DECISION
Pierce J.
Released: December 6, 2013
/nf