Notice Law - N7 (Serious Impairment of Safety)

[Furr v. Courtland Mews Cooperative Housing Inc., 2020 ONSC 1175 (CanLII)]

Serious Impairment of Safety

[13] Section 94.2(1) of the RTA provides that a cooperative may give a member notice of termination of occupancy in enumerated circumstances. The relevant circumstance here involves an act or omission of a member which “seriously impairs or has seriously impaired the safety of any person”.

[14] The appellant has cited a number of Court and Board decisions which attempt to flesh out the context, purpose and meaning of this provision. Statements of this context, purpose and meaning include the following:

(i) the notice period under this provision is short and the statute does not allow for a cure period;

(ii) the issuance of an eviction notice has serious consequences;

(iii) to put someone out of their home calls for clear and compelling circumstances;

(iv) eviction is a limited remedy of last resort, reserved for the most serious conduct;

(v) verbal harassment and threats alone rarely constitute a serious impairment of safety;

(vi) a clear intention to act on threats must be shown; and

(vii) the use of the word “serious” in s. 94.2(1) implies conduct which is “weighty, grave or momentous.”

[15] In the Vice-Chair’s reasons, he concluded that the conduct of the appellant had seriously impaired the safety of Ms. Pringle. He said:

The Co-op Member argued that he did not impair AP’s safety because he did not assault her and that harassment and threats alone do not constitute impairment [of] safety. I disagree. There are many instances where one may seriously impair the safety of a person without physically assaulting the person… Laying siege to the Co-op office in a rage is not just harassment. The Co-op Member intended to seize the membership list because he believed he was entitled to it. Given the Co-op member’s animosity towards AP, the latter had good reason to fear the worst. The co-op member’s subsequent conduct also shows that AP had good reason to fear for her safety.

[16] The appellant maintains that the Vice-Chair, although citing the language of s. 94.2(1), did not apply the test as interpreted by the Board in other cases. The Vice-Chair’s formulation did not, he argues, include the necessary elements of seriousness and gravity and did not address the question of whether there was evidence of an “intention” to act on any verbal threats.

[17] I do not agree with this argument. The Vice-Chair’s formulation of the test falls well within the range of the jurisprudence cited. In 2276761 Ontario Inc. v. Overall, 2018 ONSC 3264, the Divisional Court made it clear that serious impairment of safety includes both actual impairment and a real risk of impairment. In other cases, the Board has held that it is not necessary that anyone has actually been hurt or injured and that a serious impairment of safety may include:

(i) the potential for an outcome that has the risk of a substantial negative effect on a person’s well-being;

(ii) a foreseeable act or omission that could result in or may result in a serious impairment to safety; and

(iii) extremely loud and intense arguments could easily result in violence and would be a safety hazard.

[18] There was no error of law in the Vice-Chair’s formulation of the applicable legal test. The appellant’s real complaint is with the Vic-Chair’s application of this test to the facts. This, however, subject to the next ground of appeal, is not a question of law but a question of mixed fact and law and is, therefore, not subject to appeal under the RTA.