Housing co‑operatives occasionally have to face the unpleasant task of evicting one of their members, usually for arrears, but often for serious behavioural problems.  These evictions can be based on committing a crime on the property, or “lesser” behavioural problems, such as frequent loud parties or errant, but frightening, dogs which are a safety risk. The co‑operative board can make a decision to evict the member, but if the member does not voluntarily leave, then the co‑op must make an application to the Superior Court to have the court order an eviction.

It has been our experience that judges are reluctant to evict anyone from his or her home.  Even if there is a breach of the Co‑operative’s by‑laws, including serious breaches, a court has the discretion to refuse an eviction if it is unfair in all the circumstances to do so.  Generally, this discretion must be exercised deferentially, and a court will not interfere if the eviction process was procedurally fair to the member.

A few recent cases from the Superior Court of Justice provide some guidance from the court about what will be considered when the court turns its mind to the question of unfairness.

In Ellen McGreal Housing Co‑op Inc. v. Kubo‑Bunzigiye, the respondent argued that she would experience financial hardship and would suffer inconvenience and expense in moving out and finding a new residence.  The Judge noted that most evictions cause financial and emotional hardship and these factors did not amount to exceptional circumstances that would form a basis for a claim of unfairness.  This is generally in accordance with the advice we have given our clients over the years.

In Main‑Gerrard Community Development Co‑operative Inc. v. Dualeh, the Judge evicted even when the respondent had paid off all arrears just before the hearing.  Our own advice has been to exercise caution about pursuing eviction in these cases.

In this case, the court considered the long history of late payment and non‑payment of housing charges, and concluded it was not unfair in all the circumstances to allow the eviction.   An important factor here was the co‑op’s evidence from the auditors who had advised that late payments and accumulated arrears had a serious impact on the financial viability of the co‑operative.

Finally, in Courtland Mews Co‑operative Homes Inc. v. Wood (pdf), the Judge concluded that when considering the issue of unfairness in refusing to grant an application to evict, fairness to the co‑operative is also a relevant consideration.

In that case, the respondent was evicted based on behaviour which breached several of the co‑operative’s by‑laws. Although the decision of the Board to evict the respondent may not have been reasonable based on each individual by‑law breach, the Judge found the decision was reasonable when considering the breaches together.

The Judge also noted that “it is inconsistent with the fundamental nature of the co‑operative” to allow the respondent to remain a member when she breached the rules of the co‑operative.  He pointed out that the respondent had confirmed in her membership application that she understood the difference between being a member of a co‑operative and being in a landlord and tenant relationship, and agreed to be bound by the co‑operative’s rules.

An eviction, by its very nature, will bring about a certain degree of hardship.  While judges are reluctant to remove people from their homes, if the Co‑operative’s decision was reasonable and made in a fair manner, absent something more than financial and emotional hardship, a Judge should not exercise his discretion and interfere with an eviction decision. In considering fairness, a Judge may also look at unfairness to the co‑operative and its members if the eviction is denied.

UPDATED June 1: Fixed link to Courtland Mews Co‑operative Homes Inc. v. Wood

Filed in: Co-operative Law

Tags: Evictions, Fairness, Housing, Housing Co-operatives