Termination of Occupancy by Co-operative (RTA)

Residential Tenancies Act, 2006, S.O. 2006, c. 17, Section 94

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

94.5 (1) A notice of termination under subsection 94.2 (1), other than a notice of termination for a circumstance described in paragraph 3 of that subsection, becomes void 30 days after the termination date specified in the notice unless,

(a) the member vacates the member unit before that time; or

(b) the co-operative applies for an order terminating the occupancy of the member unit and evicting the member before that time. 2013, c. 3, s. 31.

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.

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.

Co-operative Corporations Act, R.S.O. 1990, c. C.35

66 (1) A member may be expelled from membership in a co-operative by resolution passed by a majority of the board of directors at a meeting duly called for the purpose not later than thirty days before the date set for the annual meeting of the co-operative. R.S.O. 1990, c. C.35, s. 66 (1).

(2) A resolution under subsection (1) is not valid unless,

(a) prior written notice is given to the member setting forth the grounds upon which it is sought to expel the member;

(b) the notice is given the member ten days or more before the date of the meeting of the board of directors called to consider the resolution expelling that member; and

(c) an opportunity is given the member to appear, either personally or by a person authorized under the Law Society Act to represent the member, to make submissions at the meeting of the board of directors called to consider the resolution expelling that member. R.S.O. 1990, c. C.35, s. 66 (2); 2006, c. 21, Sched. C, s. 103 (1).

(3) The secretary of the co-operative shall, within five days of the date of the meeting of the board of directors referred to in subsection (1), notify the member of the decision of the board by registered letter addressed to the member at the member’s latest known address. R.S.O. 1990, c. C.35, s. 66 (3).

(4) Where a resolution expelling a member is passed under subsections (1) and (2), the member may appeal the decision of the board of directors at the next annual or general meeting of members and the members by majority vote may confirm, vary or set aside the resolution. R.S.O. 1990, c. C.35, s. 66 (4).

(5) A member who wishes to appeal the member’s expulsion to a meeting of members shall give notice of the member’s intention to appeal within twenty-one days of receipt of the notice of expulsion mentioned in subsection (3), and the directors shall, if written representations are received seven or more days before notice of the meeting is sent, at the expense of the co-operative, forward with the notice of the meeting a copy of such representations to each member entitled to receive notice of the meeting. R.S.O. 1990, c. C.35, s. 66 (5); 2004, c. 31, Sched. 8, s. 14.

171.8 (1) If a member of a non-profit housing co-operative does not have occupancy rights, his or her membership may be terminated in accordance with subsection 49 (3) or section 66 but, if the member has occupancy rights, his or her membership or occupancy rights may be terminated only if both are terminated concurrently in accordance with subsection (2). 1992, c. 19, s. 23.

Procedure for terminating membership, etc.

(2) The following rules apply, instead of subsections 66 (1) to (3), with respect to the termination of the membership and occupancy rights of a member of a non-profit housing co-operative:

1. Membership and occupancy rights may be terminated only by a resolution of the board of directors.

2. Membership and occupancy rights may be terminated only if the member ceases to occupy a member unit or on a ground set out in the by-laws. Membership and occupancy rights may not be terminated on a ground in the by-laws that is unreasonable or arbitrary.

3. The member shall be given written notice that the board of directors will consider terminating the member’s membership and occupancy rights. The notice must be given at least ten days before the meeting of the board of directors at which the matter will be considered.

4. The notice must,

i. set out the time and place of the board’s meeting at which the matter will be considered,

ii. set out the grounds for the proposed termination,

iii. identify the member unit to which the member has occupancy rights,

iv. specify the date of the proposed termination,

v. advise the member that he or she may appear and make submissions at the board’s meeting, and

vi. advise the member that he or she may appeal the board’s decision to the members if the by-laws provide a right of appeal for a termination on the grounds set out in the notice.

4.1 The notice must advise the member that he or she need not vacate the member unit but that, after the termination of the member’s membership and occupancy rights, the co-operative may obtain possession of the member unit,

i. by obtaining an order of the Landlord and Tenant Board terminating the member’s occupancy of the member unit and evicting the member if Part V.1 of the Residential Tenancies Act, 2006 applies, or

ii. by obtaining a writ of possession from the court if Part V.1 of the Residential Tenancies Act, 2006 does not apply.

5. If a meeting is adjourned, no new notice is required if the time and place of the continuation of the meeting is announced at the original meeting.

6. The member has a right to appear, either personally or by a person authorized under the Law Society Act to represent the member, and to make submissions at the meeting of the board of directors.

7. In a decision to terminate the member’s membership and occupancy rights, the board of directors may specify a date for the termination that is later than the proposed date that was specified in the notice to the member.

8. The member shall be given written notice of the decision of the board of directors within 10 days after the board’s meeting.

9.-14. Repealed: 2013, c. 3, s. 3 (4).

Procedure for appealing termination of membership, etc.

(3) The following rules apply, instead of subsections 66 (4) and (5), with respect to an appeal by a member of the termination of his or her membership and occupancy rights in a non-profit housing co-operative:

1. If the by-laws provide a right of appeal for a termination on the grounds set out in the notice of termination required by paragraph 3 of subsection (2), the member may appeal the board’s decision to the members. The effect of the decision is suspended until the appeal is disposed of or abandoned.

2. To appeal the decision to terminate his or her membership and occupancy rights, a member must give written notice to the co-operative within seven days, or such longer period as the by-laws provide, after the notice of the board’s decision has been given to the member under paragraph 8 of subsection (2).

3. The appeal shall be considered at a meeting of the members held at least 14 days after the notice to appeal is received.

4. If the co-operative receives written representations with the member’s notice of appeal, the board of directors shall, subject to paragraph 7, ensure that a copy of the representations is given, before the meeting at which the appeal will be considered, to each member entitled to receive notice of the meeting. The distribution of the representations shall be at the co-operative’s expense. This paragraph does not apply if the representations exceed 5,000 words.

5. The member has a right to appear, either personally or by a person authorized under the Law Society Act to represent the member, and to make submissions at the meeting of the members.

6. The appeal shall be decided by a majority vote of the members and the members may confirm, vary or set aside the board’s decision. If no decision is made by the members or if there is no quorum at the meeting or if there is no longer a quorum when the vote is to be taken, the board’s decision is deemed to have been confirmed.

7. The board of directors is not bound under paragraph 4 with respect to a member’s representations if it clearly appears that the right of the member to have his or her representations distributed is being abused to secure needless publicity for matters that,

i. are not related to the appeal, and

ii. are not related, in a significant way, to the business or affairs of the co-operative.

8. If the board of directors refuses to distribute copies of a member’s representations, the board shall ensure that written notice of its refusal together with written reasons for it are given to the member within 10 days after the representations were received by the co-operative.

9. Upon application by a member whose representations the co-operative has refused to distribute, the court may restrain the holding of the meeting at which the appeal will be considered and may make any further order it thinks fit.

10. The board of directors or any other person aggrieved by the member’s representations may apply to the court for an order permitting the board to refuse to distribute the representations and the court, if it is satisfied that paragraph 7 applies, may make any such order it thinks fit.

11. If copies of a member’s representations are distributed under paragraph 4, the co-operative, the directors, officers and employees of the co-operative and persons acting on behalf of the co-operative, other than the member who makes the representations, do not incur any liability only by reason of distributing copies of the representations. 2013, c. 3, s. 3 (5).

(4)-(8) Repealed: 2013, c. 3, s. 3 (5).

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

3. Subsection 171.8(3) governs the procedure to be followed by a co-op member seeking to appeal a decision of the board of directors to terminate the member’s membership and occupancy rights. If the by-laws of the co-op provide a right of appeal, the appeal from the decision of the board of directors lies to the members of the co-op who must decide by a majority vote whether to confirm, vary or set aside the board’s decision.

4. After a person’s membership and occupancy rights are terminated under section 171.8, the co-op may apply to the LTB, if Part V.I of the RTA governs, or to the court if the RTA is not applicable to the circumstances, for an order terminating the member’s occupancy of the member unit.

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.

Rougemount Co-Operative Homes Inc. v. Plummer, 2010 ONSC 4423 (CanLII)

Termination of occupancy rights (eviction)

[8] A member may appeal termination of his or her membership or occupancy rights to the membership under section 171.8 of the CCA.

[9] The Co-Op has filed additional evidence and applies for a writ of possession under section 171.12 and an order under section 171.13 of the CCA:

171.12 Unless a member unit is vacant, the non-profit housing co-operative may regain possession only by obtaining a writ of possession under this Act.

171.13 (1) 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.

[10] The court has discretion under section 171.21 of the CCA:

171.21 (1) 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.

[11] The role of a judge under the CCA is somewhat circumscribed. The legal context is set by the decision of the Divisional Court in Windward Co-Operative Homes Incorporated v. Shuster, [2007] O.J. No. 967 at paras. 11-12:

[11] Judges will usually defer to an eviction decision made by a non-profit housing co-operative because of its democratic and self-governing nature (McBride v. Comfort Living Housing Co-operative Inc. (1992), 1992 CanLII 7474 (ON CA), 7 O.R. (3d) 394 (C.A.) at para. 20; Ryegate (Tecumseh) Co-operative Homes Inc. v. Stallard, [2000] O.J. No. 5423 (Div. Ct.) at para. 32; David B. Archer Co-operative Inc. v. D’Oliveira, [2003] O.J. No. 1469 (Div. Ct.) at para. 5). As A. Campbell J. stated in Ryegate (at para. 35), the case law reflects

a general judicial recognition that the consensual and communitarian nature of the co-operative organization commands deference from the courts in any attempt to substitute the view of the court for the democratically governed view of the co-operative and its members.

As a result, the courts have refused to set aside a decision of a co-operative unless it was unreasonable, or the co-operative failed to meet the requirements of procedural fairness in reaching its decision to evict the member (Ryegate at para. 38).

[12] While the hearing judge has discretion to refuse to grant an application for a writ of possession on the grounds of unfairness, such discretion is to be exercised only in exceptional circumstances (Coady Housing Co-operative Inc. v. Fekete, 1995 CanLII 7057 (ON SC), [1995] O.J. No. 4894 (Ont. Ct. (Gen. Div.)) at para. 11).

See also Tamil Co-operative Homes Inc. v. Arulappah (2000), 2000 CanLII 5726 (ON CA), 49 O.R. (3d) 566 (C.A.) at paragraph 34.

[12] The Divisional Court in Windward sounded an important cautionary note about the competing interests at stake in this kind of application:

[29] First, the hearing judge erred in ignoring the arrears when considering the impact of his decision on the Co-Operative. He found that there was no realistic possibility of the Co-Operative collecting the arrears, whether or not the respondent was evicted, and so he did not consider the existence of the current arrears as a factor in exercising his discretion. However, the effect of his decision was to provide a subsidy retroactive to January 2004 that would run for an indefinite period into the future. That is a significant cost, which will be borne by the other members of the Co-Operative.

…

[34] In sum, the trial judge failed to properly assess the impact of his order on the Co-Operative and its members. While there is no doubt that the respondent would face serious hardship if evicted, hardship does not equate with unfairness within the meaning of that term in s. 171.21(1) (see, for example, City Park Co-Operative Apartments Inc v. Dubois, [2006] O.J. No. 4428 (S.C.J.) at para. 34). The impact on the Co-Operative of what was both a retroactive and indefinite subsidy was very serious and not properly assessed by the hearing judge. This is not a case where there were exceptional extenuating circumstances which would make it unfair to order a writ of possession, as in the cases cited earlier. Therefore, the hearing judge erred in staying enforcement of his order.

[13] The Court will and should intervene, however, where there has been “an improper removal of a subsidy or an incorrect calculation of arrears”: Windward, supra at para. 26.

[14] In Courtland Mews Co-operative Homes Inc. v. McKay, [2007] O.J. No. 360 (S.C.J.), D. Brown J. observed at para 36 that: “it would be unreasonable for the Board to rely on a member's failure to pay housing charges if that failure resulted from the Board's use of an unfair process to terminate the member's RGI assistance,” and that this failure could be taken into account by the court in deciding whether to refuse the co-operative’s application under section 171.21 (1) of the CCA. This issue is the nub of Ms. Plummer’s case. But judicial intervention cannot involve an order reinstating the RGI assistance, which the court has no authority to do: Tamil Co-Operative Homes Inc. v. Kandiah, [2003] O.J. No. 3503 at para. 29 (S.C.J.).