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RTA - Non-Profit Housing Co-operatives. Ojarikreh v. Ascot Co-Operative Homes Inc.
In Ojarikreh v. Ascot Co-Operative Homes Inc. (Ont Divisional Ct, 2025) the Divisional Court dismissed an appeal, this from a Superior Court order "which granted the Respondent, Ascot Co-Operative Homes Inc. (the “Co-op”), a writ of possession over a unit in its housing co-operative" [under s.171.13 of the Co-operative Corporations Act].
Here the court usefully illustrates these less-used non-profit housing co-op eviction procedures, which can draw on both the Co-operative Corporations Act and often the Residential Tenancies Act:[1] This is an appeal of the order of Chalmers J. dated September 27, 2024, which granted the Respondent, Ascot Co-Operative Homes Inc. (the “Co-op”), a writ of possession over a unit in its housing co-operative. The unit was occupied by the Appellant, Ms. Ojarikreh and her son, neither of whom are members of the Co-op. The writ was sought pursuant to s. 171.13 of the Co-operative Corporations Act, R.S.O. 1990, c. C.35 (the “Act”), which provides that a housing co-operative may apply for a writ of possession of a unit if no member is occupying it.
[2] The Co-op is a non-profit housing co-operative incorporated under the Act. It consists of 132 housing units, 61 percent of which receive rent geared to income (“RGI”) rent subsidy. The Co-op is able to provide subsidies for up to 83 percent of its units and prioritizes individuals who require RGI subsidies. There is a waitlist for the Co-op’s units.
[3] The Co-op’s affairs are managed by its elected Board of Directors (the “Board”). The Board is responsible for applying and enforcing the Co-op’s by-laws, including its Occupancy By-Law. These by-laws govern the rights of members in relation to the Co-op’s units. Consistent with s. 171.4(1) of the Act, the Co-op’s by-laws state that only members of the Co-op have the right to occupy a unit.
[3] The Co-op’s affairs are managed by its elected Board of Directors (the “Board”). The Board is responsible for applying and enforcing the Co-op’s by-laws, including its Occupancy By-Law. These by-laws govern the rights of members in relation to the Co-op’s units. Consistent with s. 171.4(1) of the Act, the Co-op’s by-laws state that only members of the Co-op have the right to occupy a unit.
[4] In the fall of 2023, the Board accepted Asemota Iziegbuwa as a member and granted her occupancy rights to one of its member units. The Board also granted her a rent subsidy based on her income.
[5] Ms. Iziegbuwa did not move into the unit. Instead, on November 27, 2023, the Appellant was observed entering the unit with her child. The Appellant subsequently admitted that she was subletting the unit from Ms. Iziegbuwa and was paying her a monthly rent in the amount of $1,500, which was more than the amount Ms. Iziegbuwa was being charged for the unit.
[7] After the Board decision rejecting her membership, the Appellant was advised that she had to vacate the unit by March 15, 2024. When she did not vacate the unit, the Co-op applied to the court for a writ of possession.
[8] The application judge granted the Co-op’s application, finding that s. 171.4(1) of the Act provided that only a member of a co-op has a right to occupy a unit in a co-op and that under s. 171.4(3) of the Act, a person who has been allowed by a member to occupy a unit ceases to have any right with respect to the unit if the member ceases to be a member. With respect to the Board’s decision to refuse the Appellant’s membership application, the application judge found that this decision was “not ‘patently unreasonable’, was not a breach of natural justice and fairness or was made in bad faith.”
[9] The application judge noted that s. 171.21 of the Act provides the court with a discretion to refuse to grant a co-op’s request for a writ of possession if it would be “unfair to grant it”. The application judge considered the Appellant’s personal circumstances, including the fact that she was the single mother of a seven-year-old and that she had been unable to find a new home due to lack of affordable housing in Toronto. The application judge was sympathetic to these circumstances but found that he also had to consider the other families who were on the Co-op’s waitlist and that permitting the Appellant to “jump the queue” would be unfair. Therefore, he found that there were no exceptional circumstances that would justify refusing to grant the writ of possession. The Appellant was given 60 days to vacate the unit.
[10] In its factum, the Co-op submitted that the Divisional Court has no jurisdiction to hear this appeal; it must be brought in the Court of Appeal. It based its submission on s. 185 of the Act, which states that “an appeal lies to the Court of Appeal from any order made by the court under this Act.” This issue was considered by Davies J. on November 14, 2024, who found that since the order sought was from a final order of a judge under s. 171.13, the operative provision was s. 171.16(1) of the Act. It states that “[a]n appeal lies to the Divisional Court from a final order of a judge under s. 171.13”. The Co-op conceded in oral submissions that Davies J. was right, the Divisional Court does have jurisdiction to hear this appeal.
[11] Before dealing with the grounds advanced by the Appellant on this appeal, we wish to comment on one aspect of the decision under appeal, which is the application judge’s reference to the Co-op Board decision not being “patently unreasonable.” We question whether it is advisable to continue to use the term “patently unreasonable” given the Supreme Court’s reservations about the usefulness of that term in another context: see Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, at paras. 44-45. However, we have no issue with the application judge’s reliance on David B. Archer Co-operative Inc. v. D’Oliveira (2003), 2003 CanLII 21004 (ON SCDC), 171 O.A.C. 45 (Div. Ct.), at para. 17, where the Divisional Court stated that a co-operative’s decision “is entitled to considerable judicial deference” and that a “court should only interfere with a decision of a Co-operative when it is apparent that the decision was so unreasonable that no reasonable authority could have made it.”
[12] The first argument advanced by the Appellant is that the application judge erred in law by ignoring s. 171.21(3)(d) of the Act, which is a mandatory provision. Section 171.21(3)(d) provides that a “judge shall refuse to grant the application [for a writ of possession] if he or she is satisfied that, …(d) a reason for the application being brought is that the member unit is occupied by children, provided that the occupation by the children does not constitute overcrowding and the unit is suitable for children.” The Appellant submits that this section mandates that a writ of possession must never be granted if the unit is occupied by a child. This is not what the section says. It is only where the reason for the request for the writ of possession is that the unit is occupied by a child or children that the section applies. In this case, while the Appellant occupied the unit with her son, there is no evidence that the Co-op was seeking a writ of possession because of this fact. Thus, this provision has no application in this case.
[13] The second argument the Appellant made on this appeal is that the application judge erred in failing to consider her rights under the Residential Tenancies Act, 2006, S.O. 2006, c. 17 (“RTA”). According to the Appellant, a relationship developed between her and the Co-op because she made monthly rental payments to the Co-op which were at the market rate for the unit she was occupying (in contrast to the subsidized rate the Co-op had charged Ms. Iziegbuwa). The Appellant characterized that relationship as a landlord/tenant relationship, which meant that the RTA applied.
[14] There is no merit to this argument. This is clear from s. 171.11 of the Act, which states:Effect of acceptance of arrears
171.11 The acceptance by a non-profit housing co-operative of arrears of housing charges or compensation for occupation of a member unit does not operate as a waiver of any right the co-operative has, or any step the co-operative has taken, to terminate a person’s membership and occupancy rights or to take possession of the unit. [15] The payments made by the Appellant to the Co-op were “compensation for occupation of a member unit”. By accepting those payments, the Co-op in no way altered their rights to move to terminate the Appellant’s possession of that unit if her application for membership was not accepted. Only members are entitled to occupy member units.
[16] The argument is also contrary to ss. 171.7(1) and (1.1) of the Act, which state:171.7(1) The common law relating to landlord and tenant relationships and the Commercial Tenancies Act do not apply with respect to the member units of a non-profit housing co-operative.
(1.1) The Residential Tenancies Act, 2006 does not apply with respect to the member units of a non-profit housing co-operative, except as otherwise provided in this Act or the Residential Tenancies Act, 2006. [17] In addition, the Appellant’s argument is contrary to s. 94.1(2) of the RTA that nothing in the RTA “shall be construed as altering the relationship between a non-profit housing co-operative and a member, and in particular, the relationship shall not be construed as being one of landlord and tenant.” While the Appellant was not a member, the Act is clear that a person who has been authorized by a member to occupy a member unit ceases to have any rights to occupy that unit once the member ceases to be a member (which Ms. Iziegbuwa did in January 2024). As an unauthorized occupant, the Appellant’s rights cannot be greater than those of a member.
[18] The final submission made by the Appellant is that the application judge erred when he failed to grant the Appellant more than 60 days to vacate the unit. This was a discretionary decision that is entitled to deference and should only be set aside if the application judge made an error in principle or exercised his discretion in a manner that was clearly wrong. In this case, the application judge made no error in principle and his decision was not clearly wrong. . Osorio v. Atkinson Housing Co-operative Inc.
In Osorio v. Atkinson Housing Co-operative Inc. (Div Court, 2024) the Divisional Court allows an appeal by a de facto 'occupant' of a non-profit housing co-op, where the issue was whether the LTB had jurisdiction to order their eviction:[1] The appellant, Mr. Osorio, appeals three orders of the Landlord and Tenant Board that found he was not a member of the respondent non-profit housing co-operative and ordered his eviction from the unit in the co-op. The appellant makes several arguments that I discuss further below but that are without merit. However, as the respondent concedes, the Board did not have jurisdiction to order his eviction once it found he was a non-member occupying the unit.
[2] The appellant used to be a member of the co-op. He lived in the unit with his former spouse from 2005 to 2011. He left the unit in approximately August 2011 because of a restraining order against him associated with domestic violence. His ex-spouse continued living in the unit. The Board found that in 2018, the appellant provided the co-op with written confirmation that he had not resided in the unit since August 2011 and that he agreed to resign his membership with the co-op.
[3] In March 2022, the co-op discovered the appellant’s ex-spouse had moved out of the unit in February 2021. It also had information the appellant was living in the unit, but he had not applied to be reinstated as a member of the co-op. The co-op then started an application against the appellant’s ex-spouse to terminate her occupancy of the unit because it was abandoned.
[4] In its first decision, dated April 26, 2023, the Board concluded the appellant’s ex-spouse had abandoned the unit and that, since the appellant was not a member, he had no right to occupy the unit. The Board ordered the unit to be vacated by May 7, 2023.
[5] The appellant then filed a request for review, arguing that he was not able to participate in the hearing because the notice of hearing was not addressed to him. The request for review was referred to a hearing, which took place on September 28, 2023. After hearing from the appellant, the Board concluded that the appellant had resigned his membership with the co-op in 2018. Because he was not a member, he did not have standing to participate in the April 26 hearing. The request for review therefore was denied.
[6] The appellant made a further request for review, which was denied because he had not provided a basis to waive the Board’s rule providing it would not consider a further request to review the same order from the same party.
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The Board’s Jurisdiction to Evict the Appellant
[9] The respondent concedes for the purposes of this appeal that the Board did not have jurisdiction to evict the appellant when it found he was not a co-op member. This appears to be correct on the face of the relevant legislation. The issue was not put to the Board in this matter, but the Board previously has held the Residential Tenancies Act, 2006, S.O. 2006, c. R. 17 (RTA) does not provide it with jurisdiction to evict an unauthorized occupant from a co-op: TSC-00659-16 (Re), 2016 CanLII 25272 (ON LTB), at para. 8. Merritt J. recently adopted this position in Neilson Creek Housing Co-Operative Inc. v. Vella, 2024 ONSC 171, at para. 19, although the question of the Board’s jurisdiction was not directly before her.
[10] Part V.I of the RTA authorizes the Board to terminate the occupancy rights of a member but does not expressly authorize termination of occupancy rights of non-members. Meanwhile, s. 171.13 of the Co-operative Corporations Act, R.S.O. 1990, c. C.35 (CCA) authorizes the court to declare a person’s membership and occupancy rights to be terminated or that there is no member occupying the unit and to direct that a writ of possession be issued.
[11] Considering the relevant statutory provisions and in the absence of any argument to the contrary before me, I find the Board did not have jurisdiction to evict the appellant.
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[16] Further, contrary to the appellant’s submission, the Board was not limited to determining whether the appellant was a co-op member under an application pursuant to s. 94.10 of the RTA. That provision did not apply to the circumstances of this case but in any event, the appellant has not provided authority for the proposition that it is the only situation in which membership rights can be determined. Here, it was within its jurisdiction and appropriate for the Board to determine whether the appellant was a member so it could determine whether the unit had been abandoned, as requested by the respondent’s application. I note that if the respondent files an application under s. 171.13 of the CCA, it will be for the court to determine any impact of the Board’s findings on the application before it.
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