When Is a Member Not a Member?
By Bruce D. Woodrow
Wednesday, May 01, 2002
What is the status of a person whose membership and occupancy rights have been terminated by a co-operative but whose eviction has not yet been confirmed by a Court or carried out by the Sheriff? In particular, can the person attend general meetings, vote or even run for the board of directors?
“No”, says the Divisional Court, the appellate court in Ontario for most eviction issues. The co-operative may not be able to recover possession until the litigation is completed. But the decision to terminate membership is effective while the litigation is pending.
In order to evict a person, the board of directors of a housing co-operative must pass a motion to terminate membership and occupancy rights. The motion must set an effective date. That date may be extended if the person appeals to a general meeting and the general meeting confirms the eviction decision.
It is important to note that, if the person being evicted appeals, he or she has a right to vote at the general meeting that considers the appeal. The appeal suspends the eviction decision until the appeal is considered (or dropped), so the person is still a member at the time of the general meeting.
Unless the person leaves voluntarily, the co-operative must apply to the Court for a writ of possession (eviction order). Until a writ of possession is obtained and enforced by the Sheriff, the co-operative cannot recover possession of the unit. This means that the part of the decision dealing with occupancy rights may not be effective until the court and the Sheriff have been involved.
What about membership? Does it end on the effective date of the decision or only when possession is recovered? This is an important issue because the gap can be weeks and sometimes many months. During this time there may be general meetings, elections and other events open only to members.
In Ontario, eviction applications are heard by the Superior Court of Justice. Appeals are considered by the Divisional Court. In a case currently before the courts, a co-operative lost at trial and decided to appeal that decision. The appeal is still pending, to be heard in September.
In the meantime, the co-operative took the position that its decision to terminate membership is still effective unless and until it loses its appeal. The former member objected and asked a judge of the Divisional Court to make a preliminary decision that his membership was in good standing pending a decision on the appeal.
This required an interpretation of subsection 171.13(13) of the Co-operative Corporations Act, which reads as follows:
If a non-profit housing co-operative makes an application under this section following the termination of a person’s membership and occupancy rights and, when the application is finally disposed of, there is no direction that a writ of possession be issued and the person remains in possession of the member unit, then the person’s membership and occupancy rights shall be deemed to have not been terminated.
It is clear that membership is restored if a co-operative loses at trial and does not appeal, or appeals but loses the appeal. The issue was the status after the co-operative lost at trial but while an appeal was pending.
Mr. Justice Then ruled that the phrase “finally disposed of” included any appeals. The result was a confirmation of the co-operative’s position that membership had been ended by the decision of the board of directors (confirmed by a general meeting) and therefore the former member had no right to attend general meetings or vote, let alone run for the board of directors.
The former member sought review of this decision by a 3-judge panel of the Divisional Court, but the decision was upheld. The former member then sought leave to appeal to the Court of Appeal for Ontario but leave was denied.
The complete decisions of the Court can be found at: David B. Archer Co-operative Inc. v. D’Oliveira, [2001] O.J. No. 4140 (per Then J.) and [2001] O.J. No. 5431 (per Pardu J.)
