Administrative law – Housing co-operative – Governance – Membership – Termination – Judicial review – Procedural requirements and fairness – Natural justice – Compliance with legislation
Forestwood Co-operative Homes Inc. v. Blake,  O.J. No. 678, 2010 ONSC 1179, Ontario Superior Court of Justice, February 22, 2010, D.G. Price J.
The Applicant, Forestwood Co-operative Homes Inc., made a decision to terminate the Respondent, Mr. Blake’s membership and occupancy rights in accordance with its by-laws and the Co-operative Corporations Act. Despite this, the Respondent did not vacate his unit. This is an application for a Writ of Possession in accordance with the Act. The Respondent argued that the Applicant’s decision was not reasonable and that the Applicant did not conduct itself according to the requirements of natural justice and procedural fairness.
The Court emphasized the general requirement that it be deferential to decisions of non-profit housing cooperatives. Absent compelling circumstances, co-operatives must be allowed to manage their affairs without unwarranted interference by the courts. Absent bad faith, dishonesty, reliance on a matter outside the proper scope of consideration, failure to consider some controlling issue, or some egregious breach of public policy, it is not for the court to substitute its own view of what is reasonable for the view of those who have democratically agreed to live together under a common set of mutual obligations. In this case, the Applicant delivered a detailed affidavit setting out the basis for its decision and providing evidence that the Respondent engaged in nuisance, illegal acts, violence, harassment, and disrepair of the unit, in contravention of numerous provisions of the Applicant’s occupancy by-law. This affidavit evidence demonstrated that the Applicant acted fairly and reasonably in ending the Respondent’s membership and occupancy rights.
With regard to procedural fairness, the Act gives the Court discretion to refuse a writ of possession based on overall considerations of fairness. In analyzing this issue, the court is equally governed by the deferential standard set out above. The Respondent’s rights must be balanced against the rights of other members of the co-op, including their right to a co-operative that is peaceful and financially sound. Accordingly, the Court held that although the Respondent suffers from mental health issues, there were circumstances that would support a finding that it would be unfair to grant a writ of possession against the Respondent. Accordingly, the Court ordered the Respondent’s membership and occupancy rights terminated.
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