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New Co-op Housing Laws: Less than meets the eye

11/1/2013

 
The Non-profit Housing Co-operatives Statute Law Amendment Act, 2013 (Bill 14) unanimously passed Third Reading on September 24, and received Royal Assent on September 26. The main feature of the Act is that it amends the Co-operative Corporations Act and the Residential Tenancies Act to allow co-op housing evictions to proceed at a statutory tribunal, the Landlord & Tenant Board, rather than before the courts. It is expected that the amendments will come into force within a period of 6 to 9 months, giving the Landlord & Tenant Board the opportunity to absorb the influx of new cases. The Ministry of Municipal Affairs and Housing has itself anticipated a significant increase in co-op eviction cases that will be heard by the Landlord & Tenant Board.
The Right Honourable Linda Jeffrey, the Minister of Municipal Affairs and Housing, stated on the eve of the Bill’s passage:

“One of our government's top priorities is creating a fairer Ontario. With today's passage of Bill 14, we have provided an alternative to costlier court processes for co-ops [sic] residents and improved access to an appeal board.”

This is not strictly accurate. In fact, “co-op residents” will have no “alternative to costlier court processes” under the new law. Whereas co-op housing providers are now allowed to file eviction applications using the quicker and cheaper alternative of the Landlord & Tenant Board, co-op residents are not allowed to use the same process to raise any issues that they might be facing. Therefore, any maintenance, repairs, harassment or other complaints that co-op residents may have will still need to be brought to the courts for common law remedies. It is only co-op housing providers that have gained the right to access an “alternative to costlier court processes”. On this point and others, we continue to have concerns about the new co-op eviction process that we have highlighted in our previous blogs, Co-operative Housing Reform: The Worst of Both Worlds and Co-operative Housing, Evictions and Rent-Geared-to-Income (RGI) Subsidies.

One benefit of the eviction process occurring at the Landlord & Tenant Board may be that much of the existing eviction caselaw developed by the courts may lose its relevance. Given the costs involved in the court eviction process and sparse legal resources available to most co-op residents, the caselaw in this area has primarily developed in a one sided manner, where talented and experienced co-op lawyers face mostly unrepresented co-op residents. This has led to a body of caselaw that is not sympathetic to co-op residents facing evictions. The courts have held that their job on a co-op eviction application is not to determine the facts but to simply review whether an eviction decision made by the co-op’s Board of Directors was reasonable and procedurally fair. A great amount of deference is shown to the Directors’ decision due to the “democratic” nature of co-ops, and courts will rarely intervene to overturn an eviction decision.

However, under a new section (not yet in force) of the Residential Tenancies Act, this situation may change. S. 94.9 states that “the [Landlord and Tenant] Board shall not inquire into or make any determination as to whether the member’s membership and occupancy rights were properly terminated under section 171.8 of the Co-operative Corporations Act.” This section would seem to necessitate that the Landlord & Tenant Board undertake a fresh inquiry in any application before it. It would allow the Landlord & Tenant Board to treat the co-op’s eviction application as a new or de novo hearing where the co-op has to prove its case on the evidence rather than as simply arguing that the eviction decision made by the co-op Board of Directors should be upheld.

However, only time will tell how the Landlord & Tenant Board and appellate courts will actually interpret this section. A point to note is that there is nothing inherent in the language of the Co-operative Corporations Act that restricts the courts role to reviewing the co-op Board of Directors’ decision rather than determining the facts on its own. The court has limited its own role based on the jurisprudence that developed over the years. Co-op members and their advocates should remain vigilant lest unsympathetic interpretations carry the day at the Landlord & Tenant Board as well.
tracy
11/5/2013 05:17:44 am

thank you folks for blogging about this issue. most of the information out there about the new changes doesnt explain the impact on co-op members. thanks for caring about co-op members and our concerns.

Bette
11/12/2013 08:11:53 am

Thank you for your excellent blog post.

There's a movement afoot in co-ops to implement fines for violating certain by-laws. Our co-op will issue a warning for the first Parking By-law offence; a $50. fine will be imposed for the second offence and the owner's car will be towed. A member will receive a $100. fine for the third offence, the vehicle will be towed (at owner's expense) and the member will receive a Notice to Appear before the Board of Directors.

Upon looking around our co-op, there are a multitude of violators of this new Parking By-law. As always in co-ops, only selected members will be targeted for their parking violations and they will be the ones who will incur the fines. If the offending member refuses to pay the fine(s) for any reason, the Property Manager and/or the Office Co-ordinator will tack these fines on to their Housing Charges as 'unpaid' and will proceed to eviction in a blink of an eye.

If the Landlord & Tenant Board merely focuses on whether or not the co-op followed proper eviction procedures, the pesky member will most likely be evicted. I call this 'turnstile evictions' and it will steamroll.

Bill 14 is not to ensure that members facing eviction receive a fair hearing, it's a mechanism for co-ops to evict members expediently, without opposition.

This is what the co-op lobbyists wanted and this is what they got.

ARTHUR JONES
1/24/2015 02:49:51 am

This is the most precisely worded explanation I have seen yet for these changes.

As a member that is having eviction hung over his head but not acted on, where arrears are stated but never shown nor supported, I am in the process of having to sue my co-op to have them removed. Statements of arrears? 10 different in a 3 week period and no documentation! Repairs? Nope! Right to sit on the BOD? Nope! Right to sit on committees? Nope! Asked for eviction to begin so I can fight accusations? Nope! Support from CHASEO or CHF who we as members pay $5K each year? Nope! Support from the service manager who gives the co-op $600K per year? Nope!

Watch neighbours (ethnic minorities) being targeted with eviction without the corp even following this new statute? Yup! Forced to accept a unit "as is"? yup... members forced to accept units "as is"? yup!

This statute is horrible. In the last month I have spent time with two members trying to explain that the BOD can no longer evict but only recommend, that the co-op now has rules they must follow. I have had a single working mom member come forward and say that the management has stated "we don't do performance agreements anymore" and " I don't care what is in the bylaws"

Where is the co-op and CHASEO and CHF to explain this to the members? Why is it being used as a weapon against the members and not for the members?

In the last 2 years I have been accused of sexual assault, sexual harassment, uttering threats, child endangerment, child abandonment, attempting to hire someone to cause bodily harm, of being in arrears, of every offence possible under our bylaws and legislation.

I have been cleared by the Police, by an outside consultant, by the membership and yet it still continues

Why? because I stood up when Directors attempted to implement policies that gave preferential treatment to long term members, when staff tried to hire family, that I demanded as treasurer to see financials and that we as a community of members were forced to put our co-op first.

No help from any co-op sector organizations and I am left to go it my own!

You don't very often see a piece of legislation that targets the vulnerable sector....but I think we have it here!

oddesy
3/15/2017 09:50:44 pm

There is new bylaws in our coop that seem to give legitimacy to members harassment and intimidation by staff. I see the effect of easier evictions because our management and staff have become agents of fear and abuse. As members we can not go anywhere to complain, staff evaluation hasn't been done in the last few years, and our coop has been becoming a scary place to live


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