The Eviction Process – “It’s all about the paper trail”

June 2013

Non-profit housing co-operatives are regulated by the Co-operative Corporations Act,R.S.O. 1990, c.C.35 (“the Act”).

Procedure to terminate membership and occupancy rights of a member with occupancy rights is set out in section 171.8 of the Act:

(A) Majority of Board of Directors decide to terminate

  • Must have a quorum (Ellen McGreal Housing Co-operative Inc. v. Hall)

(B) Termination only if member ceases to occupy a member unit OR a ground set out in the by-laws

  • Importance of clearly written by-laws
  • Ground in by-law must not be unreasonable or arbitrary

(C) Written notice that Board of Directors will consider termination of member’s membership and occupancy rights.

  • Given to member at least 10 days before the meeting
  • Signed by director or authorized person (in by-laws) for the purpose

No set form as long as the following are included:

(a) Time and place of the meeting;

(b) Grounds for the proposed termination;

  • Set out clearly and specifically
  • Best to include reference to actual by-law

(c)  Identify the member unit;

(d)  Set out date of the proposed termination;

(e) Advise that the member need not vacate the member unit but that the co-operative may obtain possession of unit by writ of possession following termination of the member’s membership and occupancy rights;

(f) Advise that the member may appear and make submissions at the board’s meeting; and

(g)  Advise that the member may appeal the board’s decision to the members

(D) Member has right to appear, either personally or through an agent, and to make submissions at the meeting.

(E) If adjournment of meeting, no new notice required if announced at the original meeting

  • Although not required, recommended
  • Alternatively, copy of excerpt of minutes of board meeting

(F) Board may specify a date for termination later than that set out in the notice, if they decide to terminate the member’s membership and occupancy rights

(F)  Notice of decision of the Board must be given to the member within 5 days after the board’s meeting.

  • Must be signed by secretary of co-operative or authorized person
  • Although not mandated, best to include in notice appeal process:

(a) Member may appeal to the members;

(b) If appealed, decision is suspended until appeal disposed of or abandoned;

(c)  Member must give written notice to the co-operative within seven days (or longer period as by-laws provide) after notice of Board’s decision;

(d)  Appeal shall be considered at a meeting of members held at least 14 days after the notice to appeal is received;

(e)  Any written representations provided with the notice of appeal shall be copied and distributed to each member prior to the meeting unless:

  • The representations exceed 5000 words
  • If it clearly appears that the member’s right to have his/her representations distributed is being abused to secure needless publicity for unrelated matters to the appeal and to the business or affairs of the co-operative, in a significant way
  • If Board decides not to distribute the member’s representations, notice of its refusal with wrtten reasons will be provided to the member within 10 days after the representations are received by the co-operative

(f)   Appeal shall be decided by majority vote of the members and the members may confirm, vary or set aside the board’s decision.

  • If no deicsion made by members, no quorum or no longer a quorum at time of vote, the board’s decision shall be demmed to have been confirmed.

Overriding ability of the Courts, either exclusive jurisdiction or section 171.21, to refuse to grant the application or to postpone the enforcement of the writ of possession.

  • Procedural fairness in both the by-laws and the process
  • Compliance with the legislation and the internal by-laws
  • Reasonableness
  • Principle of Natural Justice

Any eviction consider these issues, therefore, imperative that those principles are adhered to during the process and the adherance is documented.

Documentation for evictions:

  • Must remember that the evidence that the Board relies upon for its decision can constitute a reasonable basis for its decision to terminate (ie. Not hearsay, conjecture, no investigation) (Forestwood Co-operative Homes Inc. v.; Gellert)
  • All require the membership/occupancy agreement, notice of proposed termination and notice of decision including the ability to appeal.  Also, remember principle that co-operative living dependant upon mutual co-operation of the members to foster the enjoyment, therefore, the board has an obligation to foster spirit of collegiality and co-operation by encouraging and exercising dialogue (Changemakers S0operative Homes (Kitchener) Inc. v. Andrassy)
  • If member appears at the meeting of the Board with respect to notice of proposed termination, documentation to show that member given opportunity to speak, provide evidence, and respond to the specific evidence provided to the Board
  • If there is an appeal to membership, minutes of the meeting to provide documentary proof that the majority of members confirmed the Board’s decision

Depending on the ground, other documents:

(a) Arrears

  • Attempts through arrears sub-committees etc. to resolve the issues
  • Statement of account

(b) Subsidized units-increase to market rent because of failure to provide proper information

  • Notice that annual income verification is required to maintain subsidy
  • Requests for the documentation
  • Evidence that that form of documentation is applied consistently and reasonably (unlike in Tolpuddle Housing Co-operative Inc. v. Smieja)

(c) Unreasonable disturbance and interference with other members of the co-operative, nuisance

  • Written complaints from other members
  • Evidence of Investigation process (affidavit in name of investigator)
  • Evidence of the nuisance

(d) Other grounds set out in the by-laws

  • Ensure that by-law is complied with

Examples: damages—evidence of cost to repair; altering locking systems—evidence that locks were altered, requests for key, refusals;  not to profit from occupancy—evidence of how profit made (rent charged to long-term “guest”, business), requests to cease and desist, refusals.

Author

Lucy practises in the areas of personal injury, insurance defence, and non-profit co-operative housing litigation. She has been involved in the dispute resolution process overseen by the Ontario Financial Services of Ontario and before the Office of the Commissioner of Review Tribunals, Pension Appeals Board, Workplace Safety Insurance Board- appeals branch, the Workplace Safety and Insurance Appeals Tribunal, Human Rights Tribunal of Ontario, Superior Court of Justice, Divisional Court, and the Court of Appeal. More →