COURT FILE AND PARTIES
COURT FILE NO.: 14-61283
DATE: 2014-09-12
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Fairlea Park Housing Co-Operative, Applicant
AND:
Lee Patriquin and James Smith, Respondents
BEFORE: Honourable Justice Timothy Ray
COUNSEL: Michael K.E. Thiele, Counsel, for the Applicant
Ann L. Flint, Counsel, for the Respondents
HEARD: September 12, 2014
ENDORSEMENT
[1] The applicant seeks an order confirming the termination of the tenancy of the respondents, and seeks a writ of possession. The respondents oppose the order on the ground that a subsequent performance agreement cancelled the applicant`s eviction decision.
[2] The respondents became occupants of the applicants premises in June 2011. Since then, they have almost continuously been in arrears of payments of charges and levies, and signed a succession of performance agreements in which they agreed to perform their obligations as tenants and pay any charges and levies as they became due. In April, 2012, the respondents were given a notice to appear before the applicants board by reason of the large amount of arrears. In August, 2012, they were again required to appear before the board because of additional arrears. In July, 2013, the respondents signed a performance agreement to pay the charges as they became due every month and also to pay monthly to large arrears that had accumulated. They breached the agreement and were again called to a board meeting which voted to terminate their occupancy and membership rights. Written notice of the decision was provided to the respondents on August 30, 2013.
[3] The respondents requested an appeal of the board`s decision on September 4, 2013.
[4] On September 12, 2013, the respondents paid what they believed were the arrears. However, there were other charges including a late payment fee for an outstanding balance of $754.00. The applicant gave the respondents another performance agreement to execute on the condition that the outstanding amount was paid immediately. While the agreement was signed by September 16, 2013, the payment was not made for another week. The applicant took the position that the respondents had not complied with their demand as per their letter of September 14, 2013, and scheduled an appeal as had been requested by the respondents.
[5] The Board called a special membership meeting for October 15, 2013, at which the membership voted 21 to 19 in favour of upholding the board`s decision to evict. At the time of the appeal the outstanding arrears had grown to $817.00.
[6] The respondents have remained in the premises, and have been in violation of a by-law regulating the number of people in their unit.
[7] The parties are in agreement that the Board is owed deference and that the test is one of reasonableness.[^1] In other words, it is not open to me to decide whether the board was right or wrong providing the board`s decision fell within a range of reasonable options.
[8] The respondent contends that the performance agreement signed by the respondents September 16, 2013, cancelled the board`s eviction decision, making the appeal moot. The applicant argues that it was not open to the respondents to sign the performance agreement without simultaneously paying the arrears and that failure to pay the arrears immediately meant there was no satisfactory performance agreement.
[9] The respondents also argue hardship in that it is difficult for the respondents and their four children to find alternative accommodation.
[10] I cannot find that the applicant behaved unreasonably. The respondents were not long term occupants. However, throughout the two years of their occupancy, they were almost constantly in arrears. This is a cooperative that depends on their members for its success. I find that the applicant acted reasonably in deciding to evict the respondents August 27, 2013 and October 15, 2013 after hearing argument from the respondents. I consider the applicant acted reasonably in determining that the performance agreement was dependent on immediate payment of the arrears and that it was a package. It was reasonable of the applicant, under all of the circumstances, to treat the performance agreement of September 16, 2013 as not having come into existence.
[11] I am satisfied that there are no grounds for judicial intervention on grounds of hardship. The respondents have known for a year that they must find alternate accommodation.
[12] An order will go terminating the respondents’ occupancy, and granting the applicant a writ of possession.
[13] If the parties cannot agree on costs, they may make submissions in writing of two pages or less within 14 days and a further 5 days for reply. I received a costs outline only from the applicant.
Honourable Mr. Justice Timothy Ray
Date: September 12, 2014
COURT FILE NO.: 14-61283
DATE: 2014-09-12
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Fairlea Park Housing Co-Operative, Applicant
AND:
Lee Patriquin and James Smith, Respondents
BEFORE: Honourable Justice Timothy Ray
COUNSEL: Michael K.E. Thiele, Counsel, for the Applicant
Ann L. Flint, Counsel, for the Respondents
HEARD: September 12, 2014
ENDORSEMENT
Ray J.
DATE: September 12, 2014
[^1]: Archer v D`Òliveira, 2003, 21004 at para 17 ( Div Ct)