Jurisdiction of the LTB - Re: Co-operative Housing

Residential Tenancies Act, 2006, S.O. 2006, c. 17

94.2 (1) After terminating a member’s membership and occupancy rights in a non-profit housing co-operative under section 171.8 of the Co-operative Corporations Act, the co-operative may give the member notice of termination of the member’s occupancy of a member unit under this Act in any of the following circumstances:

1. The member has persistently failed to pay the regular monthly housing charges on the date they became due and payable.

2. The member unit is in a residential complex described in paragraph 1, 2 or 3 of subsection 7 (1) and the member has ceased to meet the qualifications required for occupancy of the member unit.

3. The member fails to pay the regular monthly housing charges lawfully owing with respect to the member unit.

4. The member unit is in a residential complex described in paragraph 1, 2 or 3 of subsection 7 (1) and the member has knowingly and materially misrepresented his or her income or that of other members of his or her household.

5. The member or another occupant of the member unit commits an illegal act or carries on an illegal trade, business or occupation or permits a person to do so in the member unit or the residential complex.

6. The member, another occupant of the member unit or a person whom the member permits in the member unit or the residential complex wilfully or negligently causes undue damage to the member unit or the residential complex.

7. The member, another occupant of the member unit or a person whom the member permits in the member unit or the residential complex,

i. wilfully causes undue damage to the member unit or the residential complex, or

ii. uses the member unit or the residential complex in a manner that is inconsistent with use as residential premises and that causes or can reasonably be expected to cause damage that is significantly greater than the damage that is required in order to give a notice of termination under subparagraph i or paragraph 6.

8. The conduct of the member, another occupant of the member unit or a person permitted in the residential complex by the member is such that it substantially interferes with the reasonable enjoyment of the residential complex for all usual purposes by the co-operative or another member of the co-operative or occupant of the residential complex or substantially interferes with another lawful right, privilege or interest of the co-operative or another such member or occupant.

9. An act or omission of the member, another occupant of the member unit or a person permitted in the residential complex by the member seriously impairs or has seriously impaired the safety of any person and the act or omission occurs in the residential complex.

10. The number of persons occupying the member unit on a continuing basis results in a contravention of health, safety or housing standards required by law.

11. A notice of termination was given to the member for a circumstance described in paragraph 6, 8 or 10 and more than seven days but less than six months after the notice was given, an activity takes place, conduct occurs or a situation arises that constitutes the same circumstance under which the previous notice of termination was given. 2013, c. 3, s. 31; 2017, c. 13, s. 18.

(2) Despite subsections 171.8 (1) and 171.12.1 (2) of the Co-operative Corporations Act, where the circumstance described in paragraph 11 of subsection (1) exists, the member’s membership and occupancy rights are deemed to have been terminated for the purpose of giving a notice of termination of the member’s occupancy of a member unit under this section. 2013, c. 3, s. 31.

(3) For greater certainty, paragraph 2 of subsection (1) does not authorize a non-profit housing co-operative to give a member notice of termination of the member’s occupancy of a member unit on the ground that the member has ceased to be eligible for, or has failed to take any step necessary to maintain eligibility for, rent-geared-to-income assistance as defined in section 38 of the Housing Services Act, 2011. 2016, c. 25, Sched. 5, s. 2.

94.7 (1) If a non-profit housing co-operative gives a member notice of termination of occupancy of the member unit under section 94.2, the co-operative may apply to the Board for an order terminating the member’s occupancy of the member unit and evicting the member. 2013, c. 3, s. 31.

(2) An application under subsection (1) may not be made later than 30 days after the termination date specified in the notice, except where the application is based on a notice of termination for a circumstance described in paragraph 3 of subsection 94.2 (1). 2013, c. 3, s. 31.

(3) A co-operative may not apply to the Board for an order terminating the occupancy of a member unit and evicting the member based on a notice of termination for a circumstance described in paragraph 6, 8 or 10 of subsection 94.2 (1) before the seven-day remedy period specified in the notice expires. 2013, c. 3, s. 31.

(4) A co-operative may not apply to the Board for an order terminating an occupancy and evicting the member based on a notice of termination for a circumstance described in paragraph 3 of subsection 94.2 (1) before the day following the termination date specified in the notice. 2013, c. 3, s. 31.

94.8 Subject to subsections 94.7 (3) and (4), a co-operative that has given a member a notice of termination under section 94.2 may apply immediately to the Board under section 94.7 for an order terminating the occupancy of the member unit and evicting the member. 2013, c. 3, s. 31.

94.9 In an application to the Board made under section 94.7 or 94.8, the Board shall not inquire into or make any determination as to whether the member’s membership and occupancy rights were properly terminated under section 171.8 of the Co-operative Corporations Act. 2013, c. 3, s. 31.

TSC-00128-15-RV (Re), 2015 CanLII 37283 (ON LTB)

5. The LTB is prohibited, by s. 94.9 of the RTA, from inquiring into or making any determination as to whether the Member’s membership and occupancy rights were properly terminated under section 171.8 of the Co-operative Corporations Act.

6. The prohibition in S. 94.9 is in contrast to the provisions in S. 171.20.1 and 171.21(3)(a) of the CCA governing the court’s jurisdiction where a co-op seeks a writ of possession in circumstances to which the RTA does not apply. In those cases, the court is permitted to inquire into and determine whether the co-op has contravened the CCA or its articles or by-laws in determining whether to grant a writ of possession to the co-op.

7. It appears clear that the legislature intended to and did restrict the ability of the LTB to inquire into or make determinations concerning the procedures followed by the co-op leading to the application to the LTB. Thus the LTB Member hearing the Co-op’s application did not have jurisdiction to consider or rule on the Co-op’s procedures to terminate the Member’s membership and occupancy rights, predating the application to the LTB.

CEC-00318-15 (Re), 2015 CanLII 86440 (ON LTB)

8. The Co-op Member submitted a 62 page response to the Co-op’s Applications. In the response the Co-op Member alleges that the Co-op Member’s membership and occupancy rights were not properly terminated. The Co-op Member’s position is that the application should be refused or heard in Superior Court because the membership and occupancy rights were allegedly not properly terminated under subsection 171.8(1) of the Co-operative Corporations Act (‘CCA’).

9. The Co-op Member has failed to commence any action in the Superior Court of Justice to date. Moreover, The Landlord and Tenant Board is prohibited, by section 94.9 of the RTA, from inquiring into or making any determination as to whether the Member’s membership and occupancy rights were properly terminated under section 171.8 of the CCA. Therefore, I do not have jurisdiction to consider or rule on the Co-op’s procedures to terminate the Member’s membership and occupancy rights.

TNC-01497-17 (Re), 2017 CanLII 95108 (ON LTB)

It is ordered that:

1. The Co-op Member shall remove WM from the member unit by November 6, 2017.

2. The Co-op Member shall not permit WM into the member unit or on to the co-operative housing complex’s property.

3. Section 94.11 of the RTA applies to this conditional order. If the Co-op Member fails to comply with paragraphs one and two, above, the Co-op may apply to the LTB, without notice to the Co-op Member, for an order terminating the occupancy and evicting the Co-op Member.

SWC-00065·14-RV (Re), 2015 CanLII 11470 (ON LTB)

10. The review request contained a list of "some facts that should also be considered" in addition to the reasons for the review. These submissions could have, and should have, been made by the Co-op Member at the hearing, and some of them were made. In the review request, the Co-op Member also proposed to file a T2 (Application About Tenant Rights) and a T6 (Tenant's Application About Maintenance) but occupancy of a co­ operative housing unit is not a tenancy and the Act provides no jurisdiction for the Board to consider such applications from a Co-op Member.