Distributing material for an eviction appeal
By Bruce D. Woodrow
Friday, September 20, 2002
Eviction decisions are made by the board of directors. The member being evicted has a right of appeal to a general members meeting (“GMM”). What material must be distributed to the membership in advance of the GMM?
Subsection 171.8(2) of the Co-operative Corporations Act deals with the eviction process, and paragraphs 9 to 14 deal with appeals to a GMM. Paragraph 12 reads as follows:
12. If the co-operative receives written representations with the member’s notice of appeal, the board of directors shall, subject to subsection (4), ensure that a copy of the representations is given, before the meeting at which the appeal will be considered, to each member entitled to receive notice of the meeting. The distribution of the representations shall be at the co-operative’s expense. This paragraph does not apply if the representations exceed 5,000 words.
A co-operative will normally distribute the notice that called the member to the board meeting, because it sets out the allegations against the member. The eviction decision will also be distributed, because it sets out the decision made by the board, along with its reasons, and any conditions the member could meet to avoid or delay eviction.
A co-operative must distribute the member’s written appeal and any representations received at the same time. If the member submits separate representations, the co-operative does not, strictly speaking, have to also distribute the written request for appeal. However, part of the representations may be contained in the appeal request, or there may be no separate representations. Therefore, it is simpler to always distribute the appeal request.
Depending on the substance and detail of the representations, the board of directors may want to prepare and distribute in advance a response.
A common problem is that the member requests an appeal but does not give any reason why the eviction decision should be overturned, either in the appeal request or in separate representations. Therefore, in the words of paragraph 12 above, the Co-operative did not receive written representations with the member’s notice of appeal. In this situation, the Co-operative has 3 options:
1) distribute nothing on behalf of the member except the written notice of appeal, and leave it up to the member to distribute additional material if desired;
2) if time permits, give the member a deadline to submit additional material, and distribute whatever material is submitted by the member along with the package for the general meeting; or
3) distribute anything submitted by the member at a later date, no matter how close to the general meeting date.
Does the Co-operative have an obligation to distribute material that the member submits at a later date?
No. The Act is clear. The Co-operative’s obligation is to distribute written representations that are received with the notice of appeal, not after.
This interpretation was confirmed in a case last year. The member submitted a notice of appeal on April 26th. The board called a general meeting for Monday, May 14th, and distributed a package on or before Wednesday, May 2nd. The member submitted further materials sometime after the office closed for the week on Wednesday, May 9th, so they were only discovered on the morning of the GMM.
The member admitted that his supplementary materials were delivered after his notice of appeal, but asked the judge to find that it was unfair that the Co-operative did not distribute the supplementary materials. In written reasons, Madam Justice Molloy said:
¶ 13 In these circumstances there was no obligation on the Board to distribute the materials to the members in advance of the meeting. [The member] had the Board's written submissions well in advance of that date. There is no good explanation for why he delayed for over a week in delivering his supplementary written submissions.
¶ 14 I further find that there was no breach of natural justice or procedural fairness in continuing with the meeting on the 14th, notwithstanding the non-delivery of the written submissions earlier. It was apparent to all of the members from the material they did receive in advance of the meeting what the issues would be, and the material in the written submissions could easily have been addressed quite adequately in an oral presentation.
Therefore, a Co-operative may want to do its best to accommodate a member being evicted, even if the member submits material late. But there is no legal obligation to do so.
The complete decision of Madam Justice Molly can be found at: Chadwick Towers Co-operative v. Naughton, [2001] O.J. No. 4578 (S.C.J, per Molloy J.).
