William Punnett Housing Co-operative Inc. v. Njoku et al.

[Indexed as: William Punnett Housing Co-operative Inc. v. Njoku]

Ontario Reports

Ontario Superior Court of Justice,

Perell J.

September 9, 2014

122 O.R. (3d) 222 | 2014 ONSC 5197

Case Summary

Real property — Co-operatives — Non-profit housing co-operative — Housing co-op member refusing to pay full housing charge as she wrongly believed she was entitled to larger subsidy — Substantial arrears accumulating over six-year period — Co-op's application for writ of possession dismissed — Co-op bearing some responsibility for allowing arrears to accumulate — Termination of member's membership without giving her opportunity to comply with performance agreement unreasonable and unfair.

The respondents, AN and LN, were members of the applicant housing co-operative for 20 years. They were in arrears of housing charges in 2007 but entered into a performance agreement under which they agreed to pay a portion of the arrears monthly in addition to their monthly charges. The arrears were paid in full by July 2008. The respondents went into arrears again because they refused to pay the full monthly housing charge, erroneously believing that they were entitled to a larger subsidy. In 2013, AN left LN and their four children. The applicant brought an application to terminate the respondents' membership and their associated right of occupation at the co-op and for a writ of possession.

Held, the application should be granted in part.

Under the Co-operative Corporations Act, R.S.O. 1990, c. C.35 ("CCA"), it is mandatory that the court dismiss an application for a writ of possession in certain circumstances, none of which existed here. If there are no mandatory grounds to dismiss, the court has the discretion to dismiss the application on the grounds that the co-operative has acted unreasonably. Under s. 171.21 of the CCA, despite any provision of the co-operative's by-laws, a judge may refuse to grant an application for a writ of possession if the judge is satisfied having regard to all the circumstances that it would be unfair to grant the writ. The discretion under s. 171.21 is an extraordinary discretion to be exercised in rare circumstances and having regard to the unique nature of co-operative corporations.

In the circumstances of this case, there was no procedural unfairness in the process leading to the applicant's decision to evict the respondents. AN had abandoned his unit, and his membership and right of occupancy were terminated. It was unfair and unreasonable for the applicant to terminate LN's membership without providing her with an opportunity to comply with a performance agreement that included a scheme for the payment of the arrears. LN had complied with a performance agreement in the past. The applicant bore some responsibility for allowing the arrears to accumulate for six years. It would be appropriate to require LN to pay $215 per month on account of the arrears, in addition to her regular housing charges. If she defaulted and the default was not cured within 60 days of notice of default, the applicant was entitled to move without notice for a writ of possession. [page223]

Cases referred to

Abiwin Co-Operative Inc. v. Radbourne, [2002] O.J. No. 1251, [2002] O.T.C. 252, 50 R.P.R. (3d) 87, 113 A.C.W.S. (3d) 914 (S.C.J.); Agincourt Co-operative Homes Inc. v. Edwards, [2006] O.J. No. 2294, [2006] O.T.C. 501, 149 A.C.W.S. (3d) 157 (S.C.J.); Alexandra Park Co-operative v. Hamilton, [2010] O.J. No. 893, 2010 ONSC 1277, 259 O.A.C. 373 (Div. Ct.), revg [2009] O.J. No. 2768 (S.C.J.); Ann Marie Hill Housing Co-Operative Inc. v. Boahemaa, [2002] O.J. No. 3490, [2002] O.T.C. 657, 116 A.C.W.S. (3d) 597 (S.C.J.); Ashwood Co-Operative Homes Inc. v. Mah, [2008] O.J. No. 4636, 172 A.C.W.S. (3d) 513 (S.C.J.); Athol Green Co-operative Homes Inc. v. Price, [2005] O.J. No. 4456, 37 R.P.R. (4th) 294, 143 A.C.W.S. (3d) 166 (S.C.J.); Beaver Hall Artists' Co-operative Inc. v. Berry, [2011] O.J. No. 628, 2011 ONSC 685 (S.C.J.); Bellamy Housing Co-operative Inc. v. Bryant, [2008] O.J. No. 1997, 171 A.C.W.S. (3d) 440 (S.C.J.); Bowmanville Valley Cooperative Homes Inc. v. Spicer, 2005 40357 (ON SC), [2005] O.J. No. 4679, [2005] O.T.C. 946, 37 R.P.R. (4th) 303, 143 A.C.W.S. (3d) 601 (S.C.J.); Castlegreen Co-Operative Inc. v. S.C., [2014] O.J. No. 331, 2014 ONSC 491 (S.C.J.); Castlegreen Co-operative Inc. v. Strand, [1995] O.J. No. 2460 (Gen. Div.); Chadwick Towers Co-operative v. Naughton, [2001] O.J. No. 4578 (S.C.J.); Changemakers Co-operative Homes (Kitchener) Inc. v. Andrassy, [1999] O.J. No. 791, 95 O.T.C. 289, 86 A.C.W.S. (3d) 1154 (Gen. Div.); Chisolm Place Housing Co-operative Inc. v. Hickox, [2013] O.J. No. 1808, 2013 ONSC 2215 (S.C.J.); City-Park Co-operative Apartments Inc. v. Becker, [2006] O.J. No. 1439, 207 O.A.C. 49, 145 A.C.W.S. (3d) 727 (Div. Ct.); City Park Co-operative Apartments Inc. v. Dubois, [2006] O.J. No. 4428, 152 A.C.W.S. (3d) 740 (S.C.J.); Coady Housing Co-operative Inc. v. Fekete (1995), 1995 7057 (ON SC), 23 O.R. (3d) 674, [1995] O.J. No. 4894 (Gen. Div.); Coopérative D'Habitation Lafontaine Inc. v. Ménard, [2003] O.J. No. 253, [2003] O.T.C. 53, 119 A.C.W.S. (3d) 1031 (S.C.J.); Cornerstone Co-operative Homes Inc. v. Spilchuk, [2004] O.J. No. 3219, [2004] O.T.C. 677, 132 A.C.W.S. (3d) 804 (S.C.J.); Courtland Mews Co-operative Homes Inc. v. McKay, [2007] O.J. No. 360, 154 A.C.W.S. (3d) 973 (S.C.J.); Courtland Mews Co-operative Homes Inc. v. McKay, [2008] O.J. No. 544, 164 A.C.W.S. (3d) 710 (S.C.J.); Courtland Mews Co-operative Homes Inc. v. Smith, [2007] O.J. No. 1397, 156 A.C.W.S. (3d) 940 (S.C.J.); Courtland Mews Co-Operative Homes Inc. v. Wood, [2011] O.J. No. 5996, 2011 ONSC 7495 (Div. Ct.), affg [2010] O.J. No. 6297, 2010 CarswellOnt 11036 (S.C.J.); Crown Heights Co-operative Homes Inc. v. Isaacson, [1997] O.J. No. 1859 (Gen. Div.); David B. Archer Co-operative Inc. v. D'Oliveira, 2003 21004 (ON SCDC), [2003] O.J. No. 1469, 171 O.A.C. 45, 28 R.P.R. (4th) 258, 122 A.C.W.S. (3d) 385 (Div. Ct.); David B. Archer Co-operative Inc. v. Van Sickle, [2002] O.J. No. 3088, [2002] O.T.C. 564 (S.C.J.); Don Area Co-Operative Homes v. Sanford, [2003] O.J. No. 5229, [2003] O.T.C. 1110, 127 A.C.W.S. (3d) 991 (S.C.J.); Duncan Mills Labourers' Local 183 Co-Operative Homes Inc. v. Café, [2012] O.J. No. 2655, 2012 ONSC 3405 (S.C.J.); Eagleson Co-operative Homes Inc. v. Lalonde, [2008] O.J. No. 996, 166 A.C.W.S. (3d) 976 (S.C.J.); Eagleson Co-Operative Homes, Inc. v. Théberge, 2006 29987 (ON SCDC), [2006] O.J. No. 4585, 274 D.L.R. (4th) 359, 218 O.A.C. 321, 151 A.C.W.S. (3d) 137 (Div. Ct.); Ellen McGreal Housing Co-operative Inc. v. Chalmers, [1999] O.J. No. 1281, 82 O.T.C. 294 (Gen. Div.); Ellen McGreal Housing Co-operative Inc. v. Hall, [1998] O.J. No. 4568, 79 O.T.C. 201, 83 A.C.W.S. (3d) 847 (Gen. Div.); Fieldstone Co-Operative Homes Inc. v. Kup, [2002] O.J. No. 2090, 160 O.A.C. 331, 114 A.C.W.S. (3d) 334 (Div. Ct.); Fieldstone Co-operative Homes Inc. v. Rodriguez, [2011] O.J. No. 3093, 2011 ONSC 3660 (Div. Ct.), affg [2010] O.J. No. 4196, 2010 ONSC 5283 (S.C.J.); Forest City Housing Co-operative Inc. v. Chourbagi, 2005 4573 (ON SC), [2005] O.J. No. 707, [2005] O.T.C. 141, 137 A.C.W.S. (3d) 642 (S.C.J.); Forestwood Co-operative Homes Inc. v. Blake, [2010] O.J. No. 678, 2010 ONSC 1179 (S.C.J.); Forestwood Co-operative Homes Inc. v. Gellert, [1998] O.J. No. 4835 (Gen. Div.); Forestwood Co-operative Homes Inc. v. Simmons, [1997] O.J. No. 3202, 43 O.T.C. 45, 73 A.C.W.S. (3d) 142 (Gen. Div.).

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