Natural Justice - Re: Principles of

Bellamy Housing Co-Operative Inc. v. Bryant, 2008 CanLII 23705 (ON SC)

[34] I adopt the standard of review described by Molloy J. in Tamil Co-operative Homes Inc. v. Arulappah, [1996] O.J. No. 768 (Gen. Div.) at paras. 59-61:

The relationship between the [c]o-operative and its members is fundamentally different from the usual landlord and tenant relationship. The intent of the [Act] was to preserve the “distinctive character” of housing co-operatives while at the same time ensuring that members receive protection “similar” to those given to tenants under the Landlord and Tenant Act. The Board of Directors of a [c]o-operative is a democratically elected body of which the member/tenant is a part and within which he or she has a voice. Members of co-operatives have many protections and privileges that regular tenants do not. There is a hearing process before the Board (with a right of appeal) before a member’s rights can be terminated. There is also a democratic process for removal of a Board of Directors in whom the membership has no confidence. These protections must be taken into account by the Court in considering cases involving co-operatives. The philosophy underlying co-operative housing would be completely undermined if the decisions of co-operatives were treated in the same manner by the Court as decisions of private landlords. Some degree of deference to the democratically elected Board is required. It is not appropriate, in my view, for the Court to substitute its own opinion for that of the co-operative or to second-guess what the co-operative has done.

That is not to say, however, that co-operatives have untrammelled powers over their members. Under the [Act] the Court has a supervisory role to ensure that members are treated fairly and in accordance with the legislation and internal by-laws. Thus, as was recognized in Comfort Living, the Court can and should intervene if a member has not been treated “with procedural fairness and in accordance with the rules of natural justice”. I believe it also proper to apply a reasonableness standard to reviewing decisions of the Board of Directors as was held by Ewaschuk J. in the Mimico case and by Epstein J. in the Woburn Village Co-operative case. Generally speaking then, the Court will not intervene if a member has been dealt with in accordance with principles of natural justice and procedural fairness and if the Board had a reasonable basis for its decision in the circumstances. This, in my view, is the standard of review. [emphasis added]

[35] Accordingly, in addition to reviewing proceedings of the Board for compliance with the principles of natural justice and procedural fairness, the Court has jurisdiction to review the reasonableness of the Board’s decision to withdraw the respondents’ subsidy and to evict the respondents. However, in respect of these decisions, the Court’s authority is limited to determining whether the evidence before the Board discloses a reasonable basis for each decision. If such evidence exists, the Court must respect the decisions of the Board even if it would have decided differently.

[41] Prior to making any decision that is adverse to a household and that may be reviewed under section 82 of the SHRA (which includes a decision that a household is ineligible for RGI assistance), section 80 of the SHRA requires the service manager to give the household an opportunity to comment on information that may form a significant basis for the decision.

[42] In addition, section 82 of the SHRA provides that a household member is entitled to request an internal review of a decision of a service manager that the household is ineligible for RGI assistance. Section 58 of the Regulation prescribes the requirements for an internal review. In addition, subsection 83(2) of the SHRA provides that the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22 does not apply to an internal review, and subsection 84(4) provides that the decision of the person conducting an internal review is final, the SHRA making no provision for an appeal.

[75] Section 171.21 of the Act provides that the Court has the discretion to refuse an application for eviction if it is satisfied, having regard to all the circumstances, that it would be unfair to grant it. The applicable case law on the exercise of this discretion makes it clear, however, that the Court should only exercise its discretion under this provision in exceptional circumstances. In addition, the Divisional Court has stated that, for this purpose, hardship does not equate with unfairness: see Windward Co-operative Homes Incorporated v. Shuster, [2007] O.J. No. 967 (Div. Ct.) at para. 34 per Swinton J.