Housing co‑operatives sometimes find themselves in the unfortunate position of having to terminate the membership and occupancy rights of members – that is to evict members from their units and regain possession of the unit.  This can be for any number of breaches of the bylaws, but most commonly it is for failure to pay housing charges, or because of arrears.

The decision to evict the member is a decision of the Board of the co‑operative.  Assuming the board makes a decision to evict, under the Co‑operative Corporations Act members have a right of appeal to the membership of the co‑operative.  The Act says nothing explicit about what information can be given to the membership on such an appeal, but the general practice is to release to the membership the information that the board relied on when coming to its decision to evict the member.

Occasionally, members complain that their personal information should not be released to the general membership on the appeal.  Our advice has always been that this information is relevant and properly before the membership, otherwise the membership cannot act as the statutorily established appeal body: it will not have the required information before it and cannot make an informed decision.

We handled one complaint under the Personal Information Protection and Electronic Documents Act (PIPEDA) for a co‑operative in which a member complained that her information was improperly released to the membership at her appeal hearing.  The officer found that, on the facts of that particular case, the member had given her “implied consent” to have the information released and that the complaint was “not well founded”.  While a good result for the co‑operative, the officer went on to suggest that the co‑operative “amend its processes in connection with appeals of Board decisions to include obtaining of express written consent whenever personal information must be disclosed for the appeal in order to avoid complaints and misunderstandings in the future”.

We have significant concerns with the officer’s recommendation and consider that this decision did not really assist to resolve the question about whether it is proper to release information on a member’s appeal to the membership.  Following the officer’s recommendation could land a housing co‑operative in significant problems if the member refuses to consent.  How can the appeal process properly be done if the member does not consent?  No one suggests that when a co‑operative has to enforce its eviction decision through the Superior Court that it must obtain consent from the member to disclose the Record of Decision of the Board (that is the documents before the Board at the eviction hearing) to the court; or that its failure to do so would result in a breach of PIPEDA.

Indeed, it is our view that the information was probably exempt from requiring consent at all, as the legislation mandating a right of appeal to the membership surely contemplated release of the Board’s Record of Decision on an appeal to the membership. That is, the information can be disclosed because its disclosure is required by law.  This is the normal course for any appeal procedure, whether before an administrative body or before the courts.  One might even suggest that it was not truly “disclosure” given that the entire matter is dealt with internally within the co‑operative.

Nonetheless, one way to resolve this with more certainty would be to amend the bylaws of the co‑operative to simply state that, by appealing, members are agreeing to have any personal information that was before the Board at the eviction hearing released to the membership.  This amendment would have to be approved by the members at a membership meeting and would likely pass without difficulty.  We certainly do not recommend seeking, on a case by case basis, consent for disclosure for the obvious problems that it may cause.

Filed in: Co-operative Law, Freedom of Information and Privacy