COURT FILE NO.: CV-13-0383
DATE: 2014-01-22
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Castlegreen Co-Operative Inc.,
Christopher D.J. Hacio, for the Applicant
Applicant
- and -
Susan Carmichael,
Marla R. Brown for the Respondent
Respondent
HEARD: November 22 and 27, 2013,
at Thunder Bay, Ontario
Mr. Justice F. B. Fitzpatrick
Reasons For Judgment
[1] Castlegreen Co-Operative Inc. (“Castlegreen” or “Co-Op”) applies for a declaration that membership and occupancy rights for a bachelor unit occupied by Susan Carmichael be terminated. They also seek an order declaring that no member is presently occupying the unit and for a writ of possession of the unit. Ms. Carmichael opposes the application on the basis that it, in all the circumstances, it would be unfair to dispossess her of her unit and because she alleges Castlegreen violated her rights under the Ontario Human Rights Code.
Background
[2] Castlegreen operates a 215-unit co-operative housing complex in the City of Thunder Bay. Ms. Carmichael has been a member of Castlegreen since December 9, 2005. She signed a Housing Agreement with Castlegreen when she became a member in 2005 and has occupied her bachelor unit since that date. The Housing Agreement in question governs the relationship between the parties. Ms. Carmichael also acknowledged receiving a copy of the By-laws of the Applicant when she signed the Housing Agreement.
[3] Ms. Carmichael is on a fixed income and is in receipt of social assistance through the Ontario Disability Support Program. Ms. Carmichael has Spina Bifida which has caused a severe physical disability and anxiety and depression. She is wheelchair-bound. She also has a learning disability and cannot read. She has limited writing skills. Ms. Carmichael requires extensive and daily personal support services from the local Community Care Access Centre and requires a feeding tube.
[4] Ms. Carmichael’s membership and occupancy rights were terminated on August 26, 2013 as a result of her allegedly violating numerous By-laws, policies, procedures and her Housing Agreement.
The Position of the Parties
The Applicant
[5] There are three main complaints that Castlegreen relies upon to justify an order terminating Ms. Carmichael’s membership and occupancy rights and permitting them to obtain a writ of possession of her unit.
[6] First, Castlegreen alleges Ms. Carmichael failed to keep her unit in a reasonable state of cleanliness. Second, it alleges she allowed her unit to fall into a state of disrepair and damaged her unit. Third, she allowed a non-Co-Op member, her son Randy (now aged 19), to reside in her unit in violation of the Applicant’s By-laws and her Housing Agreement.
[7] Castlegreen inspected Ms. Carmichael’s unit on at least ten occasions over an eighteen-month period ending in July 2013. The reports found the unit to be in a deplorable state of cleanliness and repair. A strong odour had emanated from Ms. Carmichael’s unit for a lengthy period of time, interfering with the ability of other members of the Co-Op to enjoy their units.
[8] The Co-Operative argues that it has complied with the procedural requirements of the Act and that its decision in all the circumstances should be given deference by this Court and the writ of possession granted.
The Respondent
[9] Ms. Carmichael resists the granting of the writ of possession on two broad fronts. First, she alleges the decision to terminate her occupancy and membership rights did not comply with Castlegreen’s duty to accommodate her as mandated by the provisions of the Ontario Human Rights Code, R.S.O. 1990 c. H. 19 (the “Code”). Castlegreen has not demonstrated that it could not accommodate Ms. Carmichael to the point of undue hardship and therefore its decision to terminate was incorrect and cannot stand. She also argues the By-laws of the Co-Operative as applied to her are unreasonable and arbitrary and are inconsistent with the provisions of the Code. Ms. Carmichael argues that there was a positive duty upon Castlegreen to inquire as to her needs and make proposals that would assist her in complying with the By-laws of the Co-Operative such that she would not be in a position where she faced termination of her rights.
[10] Second, Ms. Carmichael submits it would be unfair to grant this application in all the circumstances, and the court should exercise its discretion to grant her relief from forfeiture.
The Law
[11] At the outset of the hearing, counsel agreed that I should consider the application of the provisions of the Code to the matters at issue. Counsel also agreed that Ms. Carmichael was disabled for the purposes of the Code. Her physical disability was acknowledged by Castlegreen but it was not conceded that she has any mental disability.
[12] Section 2 of the Code provides that every individual has the right to equal treatment and to be free from discrimination in housing accommodation on several grounds, including disability. Co-operatives are subject to the Code, and the provisions of the Code must be considered and applied by a Co-Operative and by a court hearing an application for a writ of possession under the Co-operative Corporations Act, R.S.O. 1990, c. C.35 (the “Act”), before evicting a resident with a disability for reasons related to that disability (Eagleson Co-Operative Homes, Inc. v. Théberge (2006), 2006 29987 (ON SCDC), 274 D.L.R. (4th) 359 (Ont. Div. Ct.) at para. 21 [Eagleson]).
[13] In this matter, Ms. Carmichael alleges a prima facie case of discrimination. In Moore v. British Columbia (Education), 2012 SCC 61, Abella J. of the Supreme Court of Canada set out what is considered the traditional definition of the test for a finding of discrimination. Abella J. stated at para. 33:
[T]o demonstrate prima facie discrimination, complainants are required to show that they have a characteristic protected from discrimination under the Code; that they experienced an adverse impact with respect to the service; and that the protected characteristic was a factor in the adverse impact. Once a prima facie case has been established, the burden shifts to the respondent to justify the conduct or practice, within the framework of the exemptions available under human rights statutes. If it cannot be justified, discrimination will be found to occur.
[14] This test for a finding of prima facie discrimination was also recently discussed by the Ontario Court of Appeal in Toronto (City) Police Service v. Phipps, 2012 ONCA 155. In that decision, Lang J.A. stated at para. 14 that there are three elements necessary to establish a prima facie case:
- That he or she is a member of a group protected by the Code;
- That he or she was subjected to adverse treatment; and
- That his or her gender, race, colour or ancestry was a factor in the alleged adverse treatment.
[15] In Peel Law Assn. v. Pieters, 2013 ONCA 396, Juriansz J.A. of the Ontario Court of Appeal noted at para. 65:
[T]he prima facie case test defines what is necessary to establish substantive discrimination. It is no different than in every other evidentiary context. Since a prima facie case involves evidence that, if believed, would establish the claim, a respondent faced with a prima facie case at the end of the claimant’s case must call evidence to avoid an adverse finding.
[16] At para. 73, Jurianz J.A. continued:
In discrimination cases as in medical malpractice caes, the law, while maintaining the burden of proof on the applicant, provides respondents with good reason to call evidence. Relatively “little affirmative evidence” is required before the inference of discrimination is permitted. And the standard of proof requires only that the inference be more probable than not. Once there is evidence to support a prima facie case, the respondent faces the tactical choice: explain or risk losing.
[17] In addition to considering whether or not a prima facie case of discrimination has been made out, this Court must consider whether the various requirements of the By-laws that are relied upon by the Co-Operative in deciding to terminate Ms. Carmichael’s tenancy have created a situation of constructive discrimination that engages a duty to accommodate Ms. Carmichael on the part of Castlegreen.
[18] Section 11 of the Code provides:
Constructive discrimination 11. (1) A right of a person under Part I is infringed where a requirement, qualification or factor exists that is not discrimination on a prohibited ground but that results in the exclusion, restriction or preference of a group of persons who are identified by a prohibited ground of discrimination and of whom the person is a member, except where, (a) the requirement, qualification or factor is reasonable and bona fide in the circumstances; or (b) it is declared in this Act, other than in section 17, that to discriminate because of such ground is not an infringement of a right. [citation omitted]
Idem (2) The Tribunal or a court shall not find that a requirement, qualification or factor is reasonable and bona fide in the circumstances unless it is satisfied that the needs of the group of which the person is a member cannot be accommodated without undue hardship on the person responsible for accommodating those needs, considering the cost, outside sources of funding, if any, and health and safety requirements, if any. [citation omitted]
Idem (3) The Tribunal or a court shall consider any standards prescribed by the regulations for assessing what is undue hardship. [citation omitted]
[19] Co-Operatives have a duty to accommodate persons with disabilities (Eagleson, supra para. 12 at para. 21).
[20] In addition to a consideration of whether or not the Code has been violated, the termination of Ms. Carmichael’s tenancy must also be examined in the context of the provisions of the Act. The provisions of s. 171.8 of the Act contain an extensive list of rules which apply when a Co-Operative seeks to terminate membership and occupancy rights.
[21] Among other things, s. 171.8 provides if a member of a co-operative has occupancy rights, his or her membership or occupancy rights may be terminated only if both are terminated concurrently. Membership and occupancy rights may be terminated only by a majority of the Board of Directors at a Meeting of the Board. Membership and occupancy rights may be terminated on the grounds set out in the co-operative’s by-laws. Membership and occupancy rights may not be terminated on grounds in the by-laws that are unreasonable or arbitrary. A member is entitled to written notice that the Board is considering terminating their membership and occupancy rights. Notice must be given at least ten days before the Meeting of the Board of Directors at which the matter will be considered. The notice must contain that information set out in s. 171.8(2)(4) of the Act. A member has a right to appear and speak on his/her behalf at such a meeting. The member shall be given written notice of the Decision of the Board of Directors within five days of the Board’s Meeting. A member may appeal the Board’s Decision to the members.
[22] It is important to note that Ms. Carmichael agrees that Castlegreen has followed the procedural steps as required by s. 171.8 of the Act in regard to the termination of her membership and occupancy rights.
[23] Section 171.13 requires a Co-Operative to regain possession of a non-vacant unit only upon application to the Superior Court. On a hearing of this nature, this court may admit oral testimony or anything else as evidence and act on such evidence.
[24] An application of this type may be refused where the court is satisfied that having regard to all the circumstances, it would be unfair to grant it. A remedy in the nature of relief from forfeiture is therefore available to Ms. Carmichael.
[25] An application of the type before the Court is not a trial de novo but a review of the decision of the Co-Operative. The standard for review is one of reasonableness (Forestwood Co-operative Homes Inc. v. Blake, 2010 ONSC 1179 at para. 16 [Forestwood]). A number of authorities considering the Act have found that courts generally will not overturn a Co-Operative’s decision to terminate a member’s membership and occupancy rights unless there has been some demonstration of error or a clear case of unfairness in the process in order to justify the Court’s intervention to relieve against forfeiture (Coady Housing Co-operative Inc. v. Fekete (1995), 1995 7057 (ON SC), 23 O.R. (3d) 674 (Ont. Ct. Jus. (Gen. Div.)) at para. 11, Ryegate (Tecumseh) Co-operative Homes Inc. v. Stallard (2000), 2000 30138 (ON SCDC), 194 D.L.R. (4th) 363 (Ont. Div. Ct.) at para. 8, and Forestwood, supra at para. 17)
Discussion
[26] I will first deal with the arguments concerning the alleged breach of the Code and the impact, if any, on this application.
[27] There is no question that Ms. Carmichael is a member of a protected group. There is no question that termination of her membership and occupancy rights constitutes an adverse treatment (although she continues to remain in her unit pending the result of this application). She meets the first two thresholds of the threefold test for a finding of prima facie discrimination. The fundamental issue to be determined is whether or not her disability was a factor in this adverse treatment or the decision-making process that led to this result.
[28] At the outset, I must observe that the evidence in this matter, at least in so far as the allegations concerning the breaches of the Code were concerned, was lacking in detail and particularity necessary for me to make the conclusions urged by Ms. Carmichael’s counsel. In my view, most of the arguments made by the Respondent concerning the breach of the Code proceeded on the assumption that facts had been proven which in fact were not proven based on the affidavit evidence before me. I appreciate this kind of application is structured by the terms of the Act to be one where the traditional rules of evidence are relaxed to the point where I may consider “anything”, in the interest of creating an efficient, cost effective and expeditious manner of dealing with the very intimate and personal problems which arise when people living in a Co-Operative situation seek to exclude a fellow member. Also, I am aware of the direction from the Court of Appeal in Pieters, supra para. 15 that the evidentiary burden is relatively low in cases where discrimination is alleged.
[29] In this case, there are three different bases upon which Castlegreen asserts Ms. Carmichael has not “played by the rules”, and therefore is no longer entitled to maintain her membership and occupancy. Ms. Carmichael alleges that these requirements represent prima facie discrimination. I will deal with each of these in turn, considering whether or not Ms. Carmichael has proven the necessary connection between her disability and the decision regarding each of the three grounds upon which Castlegreen decided to terminate her membership and occupancy rights.
[30] Ms. Carmichael argues that the by- law requiring her to keep her unit clean has had an adverse impact on her because of her disability. She also argues that the decision to terminate her membership was discriminatory because she cannot keep her unit clean.
[31] In order to assess the merit of this argument, I believe it significant to outline all of the relevant portions of Ms. Carmichael’s affidavit evidence concerning the cleanliness issue. It was contained in the one affidavit she placed before the Court dated November 18, 2013:
Regarding the cleanliness of my unit, I have always done my best to maintain my residence, and have cleaned up after myself and my pets to the best of my ability. If my dog had an accident, I would clean and sanitize the area right away. When I was hospitalized, Randy would remain in the unit and I assumed that he would take care of the daily needs of the pets and the overall cleanliness of the apartment.
On February 5, 2013, Castlegreen, Community Care Access Centre and Lutheran Community Care Centre attended a meeting regarding the state of my unit. I was unfortunately unable to attend this meeting. Attached are the meeting minutes prepared by Betty DesJardine as Exhibit “B.”
I have had several inspections of my unit for cleanliness, starting in March 2012. All of the inspections conducted indicated that my unit was in poor condition except for the unit inspection of February 15, 2013. The unit inspection form indicated that my unit had been substantially cleaned by Comfort Keepers, a local cleaning company. Attached is the Unit Inspection Form dated February 15, 2013 as Exhibit “C.”
On July 25, 2013, a meeting was held to discuss the co-op bylaw violations with regards to the cleanliness of my unit and that Randy and his girlfriend were residing in my bachelor apartment. On July 26, 2013, I was evicted by the Board of Directors of Castlegreen and my occupancy and membership rights were terminated effective August 26, 2013…
With the support of Ms. Golphy at Lutheran Community Care, a thorough cleaning was subsequently scheduled and performed on November 2, 2013. The company that did the cleaning was called Comfort Keepers. I have a Trustee with the Public Guardian and Trustee and she has approved ongoing cleanings with Comfort Keepers so that my rental unit is always kept in a reasonable standard of cleanliness.
[32] In my view, nowhere does the evidence state that her disability prevents her from keeping her unit clean. Obviously, because of her physical disability she requires assistance to clean her unit. The evidence supports that she has such assistance. In fact, Ms. Carmichael does assert that she has recently had her unit cleaned in a way that will keep it at a reasonable standard of cleanliness. But apparently, Ms. Carmichael’s views of cleanliness are not those of the other members of the Co-Operative. This has created a contest, not where disability is the issue or is even a factor, but one where Ms. Carmichael’s lifestyle choices have brought her into conflict with her neighbours.
[33] In my view, the evidence does not establish the necessary connection between Ms. Carmichael’s disability and the decision which is having an adverse impact on her. From the evidence that was filed, it appears that Ms. Carmichael’s inability to clean up after her animals is the real issue of cleanliness in the unit at issue. There was no evidence whatsoever from her about the dog and cat except that she is concerned that that they end up in a shelter. There was no evidence, medical or otherwise that either animal is required to be kept in order to assist her with her disability. However, it appears that dog and cat feces are the prime culprit when it comes to the offensive smells emanating from her unit.
[34] It is these smells that cause great discomfort to her neighbours and has contributed to several of Ms. Carmichael’s caregivers refusing to enter her unit. Evidence was also provided that employees of an independent contractor, Tbay Tel, refused to enter the unit because of the feces on the floor. It is not her disability that is being improperly referred to or relied upon as a factor in this decision to terminate. It is Ms. Carmichael’s personal choices that have nothing to do with her disability that is causing the problem.
[35] In one of the exhibits to Ms. Carmichael’s affidavit (Exhibit “B” notes of a meeting of February 5, 2013 prepared by a representative of Lutheran Community Care Centre) it is observed:
[I]t was also mentioned that Sue is not able to handle the dog. The dog will often jump up on Sue and leave scratch marks on her with its nails after walking through feces on the floor. The chance of infection in Sue’s recent incision is extremely high and will make sure that Sara is aware of this[.]
[36] In my view, Ms. Carmichael is perfectly capable of maintaining the cleanliness of her unit, with assistance, except that she has made a decision to bring in animals which are beyond the capacity of both herself and her caregivers to control to the point of not creating an offensive situation that impacts others. There was no evidence that Ms. Carmichael requires these animals to assist her in her daily living.
[37] I find that it was Ms. Carmichael’s decision to keep animals in her unit, and not her disability, that has led to the state of poor cleanliness in the unit. She did have a major cleaning done in February but that only can be accomplished on a monthly basis. She also claims a major cleaning was done immediately after the commencement of this application. However, it appears from the evidence filed on behalf of Castlegreen she cannot clean up after her dog and cat on a day-to-day basis. Photos entered as evidence showed the floor of her unit covered with dog feces and a litter box that had obviously not been cleaned in many, many days.
[38] I find that on the issue of cleanliness of the unit, Ms. Carmichael’s disability was not a factor in the decision or the decision-making process that led to the termination of Ms. Carmichael’s occupancy rights. She has not proven a prima facie case of discrimination with respect to this issue.
[39] Ms. Carmichael also asserts that the By-law of the Castlegreen requiring a member to keep their unit clean operates in a manner to cause constructive discrimination towards her. In my view, this argument is without merit as it is not consistent with the evidence given concerning cleanliness of the unit. Ms. Carmichael asserts she can keep the unit clean with assistance from persons other than Castlegreen. Castlegreen disagrees. However, I cannot see how this disagreement automatically makes the By-law at first instance discriminatory. As I have found above, the conflict about cleanliness arises from an issue completely independent of Ms. Carmichael’s disability. It is her decision to keep a dog and cat, which has led to the cleanliness problem. However, it is not asserted in her affidavit material how the By-law operates to constructively discriminate against Ms. Carmichael. This was a matter raised only in a responding factum and in argument. Based on the evidence in this application, I am not persuaded that Ms. Carmichael has proven that the cleanliness requirement By-law operates to exclude, restrict or prefer Ms. Carmichael as a member of a group of persons who are identified by a prohibited ground. There is no corresponding requirement for Castlegreen to demonstrate that the by law is reasonable or bona fide on the basis that they have acted to accommodate Ms. Carmichael to the the point of undue hardship.
[40] Further on the cleanliness issue, Ms. Carmichael argues that the Co-Op had an independent duty to inquire if Ms. Carmichael required accommodation with respect to the cleanliness issue. While I agree that the jurisprudence from the Ontario Human Rights Tribunal indicates such a duty exists, there is also recognized in the jurisprudence an obligation on a person asserting the need for accommodation to assist in identifying the need and proposing methods by which accommodation can be achieved. Further, as noted above, Ms. Carmichael has failed in this application to demonstrate how the By-law created constructive discrimination.
[41] Despite not being required to accommodate Ms. Carmichael, in my view, the Co-Op did such an accommodation inquiry when it met with Ms. Carmichael in February 2012 to discuss her cleaning situation. In this respect it is important to note that at that time, Ms. Carmichael had been a member of the Co-Op for six years. Apparently her membership had been without incident up to that point. Ms. Carmichael has lived in the unit since 2005. From exhibits to Ms. Carmichael’s affidavit there is evidence that she has had Spina Biffida since birth. I assume she has required her wheelchair to ambulate since moving into Castlegreen. She did not however assert at the meeting that her disability was causing her any problems with cleanliness. The only time such an assertion was made was after this application was commenced and only in argument. As noted above, this position is contrary to that expressed in her affidavit evidence. She does assert that her recent cleaning efforts were sufficient to bring the unit to an acceptable standard of cleanliness without the assistance of Castlegreen.
[42] The steps taken by Castlegreen in meeting with Ms. Carmichael on many occasions, and giving her ample opportunities to take steps to clean up her unit was sufficient to satisfy any duty to accommodate that may have been present.
[43] Damage to Ms. Carmichael’s unit was also asserted by Castlegreen as a basis to terminate her membership and occupancy rights. Ms. Carmichael did not challenge this aspect of the decision on Code grounds. If I have misunderstood her position on this specific issue I observe that there was no evidence put forward as to how this requirement constituted discrimination under the Code. There was no evidence indicating that Ms. Carmichael’s disability was somehow a factor in the cause of the damage to her unit or in the ability to fix it. This issue will be discussed further in the context of the consideration of the fairness of the decision to terminate in all the circumstances.
[44] It was not entirely clear from the materials filed or the arguments made at the application, if Ms. Carmichael was asserting a Code violation in regard to the manner in which Castlegreen has relied on the fact that she has allowed her son to reside in her unit contrary to the By-law of the Co-Op as one of the bases for terminating her membership and occupancy rights. Her affidavit evidence does outline the history of her relationship with Randy, who was taken from her at age 4 or 5 because the Children’s Aid Society allegedly determined she could not care for him because of her disability. At the time of this application the evidence indicated Randy was 19-years-old and not living in the unit as he is incarcerated at the Thunder Bay Jail for an indeterminate period.
[45] It is clear Ms. Carmichael has resolved within the past three years to try to re-establish a relationship with Randy. This apparently involved ignoring the By-laws of the Co-Op and allowing both Randy and his girlfriend to move into the unit. She deposes that she relies on Randy for emotional support and well-being. Ms. Carmichael argues that she had a difficult time in the past with her son. Because of these difficulties, she claims she could not ask him to leave her apartment.
[46] Randy could have applied for membership in the Co-Op when he turned 18, but he did not. Ms. Carmichael also did not apply for him. Evidence was placed before the court, admittedly of a hearsay nature, by Castlegreen concerning Randy’s interactions with other members of the Co-Op from which I find that Randy has not been a “model” visitor to the Co-Op and has caused problems that should have been addressed by Ms. Carmichael.
[47] There otherwise was no evidence tendered that would allow me to make the connection between the nature of Ms. Carmichael’s disability and her need to have her son live with her. Despite the summary nature of these proceedings, I cannot speculate on how specifically Ms. Carmichael alleges that her disability was a factor in Castlegreen’s decision on this particular point. At best, like her decision to keep her animals, her decisions regarding Randy were motivated by personal considerations. These are understandable as a mother long-separated from her son. However, there was no connection proven that her disability, physical or mental, had anything to do with her decision to ignore the rules and By-laws about who was allowed to live in the unit, and correspondingly for Castlegreen to rely on this fact as a basis to terminate her membership and occupancy rights.
[48] There was no mention of a claim for discrimination on the basis of family status made at the hearing or in the materials. There was no express argument made or evidence led, as to how the By-law and rules limiting the numbers of persons who could occupy Ms. Carmichael’s unit to one, herself, had the effect of excluding, restricting or preferring Ms. Carmichael as a member of a group of persons who are identified by a prohibited ground. As no such evidence was led, I find first, that she has not proven prima facie discrimination on the basis of Castlegreen’s reliance on Randy’s actions. Second, based on the evidence in this matter, I find that the By-laws and rules limiting the occupiers of Ms. Carmichael’s unit to one, and then only a member of the Co-Operative, did not represent constructive discrimination within the meaning of the Code thus requiring Castlegreen to prove the reasonableness and bona fides of the rules or By-laws by demonstrating an attempt to accommodate Ms. Carmichael to the point of undue hardship.
[49] Regarding the application of the Code, first and foremost it must be remembered that despite the fact that Ms. Carmichael was responding to this application, to the extent she was asserting a breach of the Code, she bore the evidentiary burden of proving a prima facie case. Overall, I find that Ms. Carmichael has not made out a prima facie case of discrimination, or a case of constructive discrimination even upon the most generous of readings of her affidavit material and the material filed by Castlegreen. In my view, from a Code perspective, the procedure followed by Castlegreen has not violated Ms. Carmichaels’s rights: Castlegreen has been in compliance with all its obligations to accommodate Ms. Carmichael concerning the various By-laws, rules and procedures at issue.
[50] I turn now to a consideration of the arguments which rely strictly on the application of the provisions of the Act. Aside from her Code complaints, Ms. Carmichael does not take issue with the procedure followed in regard to the termination of her occupancy and membership rights. She does however argue that it would be unfair in all the circumstances to uphold the decision of the Co-Operative.
[51] There is no doubt that Ms. Carmichael is a vulnerable person with special needs. This case is factually different from all of the cases put before me insofar as Ms. Carmichael’s disability limits her options to respond to the situation that she is facing. I agree with the assertion contained in her affidavit that opportunities for alternative housing for her are extremely limited. A move to a shelter would put her in a situation where her day-to-day needs could not reasonably be met. Having said that, in my view, a balance must be struck given the nature of the housing she now has.
[52] The applicant Co-Operative is a unique organization where by definition, the rights of the collective are weighed against the rights of the individual members, in one of the most basic of human needs – housing. I agree with the authorities noted above that deference must be given to the decisions made by the duly constituted representatives of the Co-Operative when they have complied with all the procedural requirements of the Act.
[53] In my view, the three bases upon which the Co-Operative relies to terminate Ms. Carmichael’s membership are reasonable and valid. With respect to the cleanliness issue, in my view, the difficulty lies not with any limitations Ms. Carmichael has in maintaining her unit, but rather with her decision to keep pets which creates a situation where her choices are infringing on the rights of other co-operative members. In my view, if the pets were not present, a significant cleanliness issue would be addressed and perhaps steps that were taken following the February 5 meeting may have caused the Co-Op board to reconsider its ultimate decision.
[54] The difficulty in this matter arises because of the “fluid” nature of the situation at issue. Photographic evidence of the unit, regrettably undated, was presented to the Court by Castlegreen by way of a responding affidavit. Counsel for Ms. Carmichael advised in submissions that as of the beginning of November 2013, arrangements had been made to more thoroughly clean her unit. Ms. Carmichael deposed that on November 2, 2013 a thorough cleaning was performed. No other particulars of this cleaning were placed before the court other than an email suggesting the Public Guardian and Trustee will pay up to $300 to have a special cleaning done of the unit. This evidence was not sufficient to overcome the very compelling photographs which showed a unit in a severe state of untidiness, damaged and littered with animal feces. The lack of evidence, descriptive or photographic to the contrary showing a different state of affairs made it difficult for the Court to be sympathetic to Ms. Carmichael’s situation. Apparently Castlegreen has been trying to persuade her to take better care of her unit for almost two years. It is now very late in the process that she alleges that steps have been taken to remedy the problem. This is not sufficient or satisfactory in my view to engage the relief from forfeiture provisions of the Act.
[55] The second factor relied upon by Castlegreen was the damage that has been done to Ms. Carmichael’s unit. The Co-Operative relies on a By-law that requires members not to damage their unit. Photographic evidence was tendered which shows some significant slashing type damage to the walls and doors of the unit. No explanation was given by Ms. Carmichael for this damage. It is there. I cannot say one way or the other who, or what, caused the damage. But it was clearly shown on the photographs.
[56] Ms. Carmichael agreed to keep her unit in a good state of repair. The By-laws and Housing Agreement create a basis for membership to be terminated for failure to keep a members unit in a good state of repair. Ms. Carmichael has failed to do this without excuse. As noted above, on this aspect of the complaints against her, she has not shown that her disability is a factor in the Co-Operatives decision. I cannot see how her disability can have anything to do with relieving her of the obligation not to damage her unit. As no explanation was tendered, I agree with the submissions of the applicant this is a good and valid basis to terminate her membership and occupancy rights.
[57] The last basis upon which Castlegreen decided to terminate Ms. Carmichael’s membership and occupancy rights involved her decision to permit her son to reside in the unit. Earlier in this decision I have discussed the evidence concerning Randy. I do not think it necessary to repeat it again. I do find that Ms. Carmichael was in breach of the Co-Operative rules concerning who can occupy the unit. While I am sympathetic to her history with Randy, I find that the decision of Castlegreen with regard to the issue of her son was reasonable in all the circumstances.
[58] I agree with the submissions of the applicant that a writ of possession should issue in this case. I am persuaded by the authorities that the decision of a duly elected board of a co-operative should not be lightly interfered with. In this case it is clear Ms. Carmichael has violated three major By-laws and policies of the Co-Op. She has been given ample opportunities to remedy the situation and did not.
[59] The difficulty I have in crafting the appropriate remedy in all the circumstances is the obvious hardship that will face Ms. Carmichael upon the writ of possession being executed. Section 171.21 provides a judge only has the authority to postpone the enforcement of the writ of possession for a period not exceeding one week. I have the authority to refuse to grant the application if I think it would be unfair to grant it.
[60] In my view, it is unfair to continue to allow Ms. Carmichael to reside in the Castlegreen unit when she has so flagrantly and obviously failed to comply with the rules and By-laws of the Co-Operative. Equally however, I think it is unfair to have her removed from her unit without being able to relocate to another suitable location. During submissions counsel indicated that a Court order for a writ of possession may assist Ms. Carmichael’s quest for new housing. Her counsel indicated she has already begun that process but assisted living opportunities are difficult to find here in Thunder Bay.
[61] In the circumstances, what I think is the most fair, just and equitable solution to the matters raised in this application is to indicate I am prepared to grant the application but adjourn the date to which I actually make the order for the writ of possession. This matter will therefore be adjourned for ultimate disposition to the day after Ms. Carmichael has left the premises to go to some more suitable location or some such earlier date as this court may later determine. In order to effect and facilitate that result, I am going to make an interim order with terms that will expedite matters to the point where the final order may be made.
[62] In the interim, it is ordered that Ms. Carmichael’s pets are to vacate the unit within 30 days of the release of this interim decision. Further, following today’s date, she is not to have any dogs, cats or other animals in the unit pending her move from the unit.
[63] As far as Randy goes, I understand he has been served with a trespass notice for the property. In order to ensure that Ms. Carmichael cooperates with the express intent of the Co-Operative to not have him in attendance, Ms. Carmichael is hereby ordered not to permit Randy or anyone else, other than persons necessary to attend to her medical or personal needs, to remain overnight in her unit.
[64] With regard to the damage issue, Ms. Carmichael is to permit Castlegreen access upon reasonable notice to repair her unit if they choose to do so pending her move.
[65] Ms. Carmichael is ordered to make all reasonable efforts to find other suitable accommodation forthwith. She or her counsel is to report every 30 days to the Board of the Co-Operative as to her efforts including giving particulars of the addresses for which she has applied to move and any and all responses from persons in control of those premises. In the event the Co-Operative is not satisfied for any reasons with her efforts, they may have the matter returned before me for directions, on at least 7 days notice to Ms. Carmichael.
[66] If there are any difficulties implementing the terms of this interim order, I continue to be seized with the matter and may be spoken to.
[67] There will be no costs for this application.
“Original Signed By”
The Hon. Mr. Justice F.B. Fitzpatrick
Released: January 22, 2014
COURT FILE NO.: CV-13-0383
DATE: 2014-01-22
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Castlegreen Co-Operative Inc.,
Applicant
- and -
Susan Carmichael,
Respondent
REASONS FOR JUDGMENT
Fitzpatrick J.
Released: January 22, 2014
/mls