A co-op sought to evict an occupant for failing to perform the two hours of volunteer work each month required by the co-op's by-law, despite the fact that she had provided a doctor's note that she was incapable of performing the volunteer work for medical reasons. The Ontario Divisional Court stated that the co-op had a duty to respect the rights of its occupants under the Ontario Human Rights Code and to accommodate the needs of an occupant with a disability, to the point of undue hardship. The Court applied the Code and the Commission's Policy and Guidelines on Disability and the Duty to Accommodate and held that it would have been reasonable and appropriate for the co-op to obtain answers from the occupant's doctor to determine if any of the volunteer tasks could be performed, notwithstanding her medical condition. If so, it could have accommodated her by assigning her tasks she could perform, but if not, the cost of accommodating her by exempting her from the volunteer work requirement would be unlikely to impose an undue hardship. The Court concluded that it would be unjust in all the circumstances to evict the occupant: Eagleson Co-Operative Homes, Inc. v. Théberge, [2006] O.J. No. 4584 (Sup.Ct. (Div.Ct.).
The Human Rights Commission further stated in their Right at home: Report on the consultation on human rights and rental housing in Ontario:
Many consultees spoke about democratic decision-making and the lack of awareness of the Code in co-operatives as factors leading to Code violations and difficulties resolving human rights issues. For example, the Commission heard that member-approved by-laws, including those relating to eviction, may be applied even though they conflict with a need for accommodation under the Code. In other cases, the Commission was told that boards of individual co-ops believe that they can make up their own rules without taking the Code into account, or that existing rules cannot be modified to address human rights issues without approval from a majority of the membership. These types of issues indicate a need for further measures to raise human rights awareness within this sector.
In this consultation, the Commission also heard that many tenants are unaware of their rights, and are fearful that they may jeopardize their housing if they raise human rights concerns while still living in the rental unit. For example, co-op members told the Commission that it can be difficult for them to raise human rights issues because of the emphasis on democratic decision-making.
In April 2003 the Co-operative Housing Federation of Canada Ontario Region in their report entitled Rethinking Co-op Housing Evictions, stated that there was an urgent need to revamp the eviction process, because it was a messy and costly affair. It could cost co-ops enormous amounts of money in lawyer's fees to go through the Court system and thousands of dollars more should they have to appear before the Ontario Human Rights Commission.
One of the options suggested was to take the eviction procedures out of the Co-op Act and have the co-op deal with evictions within their own by-laws. In that context appeal rights of the member being evicted could end or be restricted, along with those pesky required 10-Day Notices. (Co-op evictions could fail in the Courts if they do not follow the proper procedural steps within their by-laws.)
Another option was to have arbitration within the co-op sector. Two people from each co-op could sit on the panel and if this Tribunal were to find the potential evictee guilty, a Writ of Possession could be immediately obtained and the eviction would be carried out swiftly, efficiently and inexpensively. Manitoba, was at this time, using such a system, but it wasn't working very well. Often there was a conflict of interest in the members chosen to sit on such a tribunal panel.
Yet another option was to use the present Rental Housing Tribunal. Eviction procedures under this Tribunal usually only ran between $500. to $1,000.
The co-op sector stated that not only were they trying to save money for individual co-ops by going this route, but to alleviate stress and agony for the neighbours of the potential evictee and for the evictee, him/herself!
In the Co-operative Housing Federation of Canada's Newsbriefs, Ontario Edition, November 2007 - Volume 15, No. 2, the co-op sector is finally having their way. It states:
Mario Sergio, Parliamentary Assistant to the Minister of Municipal Affairs and Housing announced at the 2007 AGM of CHF that the government is prepared to move forward with changes to the eviction system.
Co-ops are concerned that the current model is too slow and costly for both members and co-ops and not as fair to members facing eviction as it should be. In 2004 the Ontario Council submitted a proposal for a new approach to the Province and has worked since then to win political support.
The key elements of the government's plan include:
- a new Co-op Housing Tribunal, linked to the Landlord and Tenant Board, to deal with co-op evictions
- a common set of grounds for eviction set out in legislation. The Ministry will work with the Ontario Region to confirm the grounds. Co-ops will be able to use by-laws to set out other grounds for eviction but these cases would be dealt with through the courts
- streamlining of the requirements in the Co-operative Corporations Act concerning the internal co-op process, and
- legal clarification that the Tribunal will start over in its review of an eviction and make its decision based on the merits of the case with no examination of the internal process used by the co-op.
The Co-op Housing Tribunal would be just linked to The Landlord Tenant Act. If the panel is comprised of co-op sector people, a conflict of interest could arise. If the Co-op Act is streamlined to remove evictions from its mandate and if the internal processes used by the co-op are restricted, this will give co-ops the ultimate power of self-governance. Rights of Appeal by Members could be severely restricted and the Notices of legal time-frames of evictions could also be limited or restricted. This will likely make it more difficult for a Member to have legal representation as Community Legal Clinics are already hesitant to interfere with the internal processes of a co-op.
If you feel you need representation at any Board Hearing or eviction proceeding, you might well ask your Grandmother to represent you, because The Co-operative Housing Federation of Canada's Newsbriefs, Ontario Edition, Spring 2008 - Volume 16, No. 1, states:
This will be more costly to the Member facing eviction.
From now on, if a housing co-op member chooses to have someone represent them at a board meeting or members' meeting about an eviction, that person must be someone authorized under the Law Society Act. This basically means a lawyer,someone from a legal clinic or an unpaid relative, friend or neighbour. A paid paralegal is not permitted unless employed by a legal clinic.
Co-op by-laws conflict with each other and differ again from by-laws in other co-ops. If your co-op says that you can only grow red flowers and you decide to grow green flowers instead, you'd be in violation the co-op's by-laws and could possibly face eviction. It doesn't matter how ridiculous the by-law might be; the co-op sector does not like anyone challenging their by-laws. The system that is being proposed by the co-op sector is turnstile evictions and potential evictees will be piling up behind the gates.
The Human Rights Commission stated that:
Housing providers expressed considerable frustration about formal human rights claims made under the Code. For example, the CHFC noted that human rights complaints are perceived as an avenue for appeal beyond the co-op's internal processes to resolve concerns or the processes prescribed under provincial legislation.
The upside for the co-op sector is that soon they might be able to evict the likes of one Ms. Théberge for failing to do her two hours of volunteer work a month afterall.
Licensed paralegals are also "authorized by the Law Society", as per Access to Justice Act, and subsequent amendments to various laws, including the Law Society Act, and any legislation involving litigation where a non-lawyer can be involved.
ReplyDelete