Homestead Housing Co-Operative Ltd v Barth, 2016 ABQB 538

Court of Queen’s Bench of Alberta Citation: Homestead Housing Co-Operative Ltd v Barth, 2016 ABQB 538 Date: 20160927 Docket: 1503 12328 Registry: Edmonton Between: Homestead Housing Co-Operative Ltd. Applicant - and - Manfred Barth and Heather Barth Respondents Corrected judgment: A corrigendum was issued on October 3, 2016; the corrections have been made to the text and the corrigendum is appended to this judgment. _______________________________________________________ Reasons for Judgment of W. S.

Schlosser , a Master of the Court of Queen’s Bench of Alberta _______________________________________________________ [ 1 ] These cross applications arise from the termination of the Barths’ membership in the Homestead Housing Co-operative. The Co-op determined that the Barths’ unit was in an unfit state. They gave the Barths an ultimatum and then decided that they had to go. The Barths are founding members of the Homestead Housing Co-Operative. They do not want to leave. [ 2 ] The Barths seek (in part): (

b) an Order to set aside the Co-op’s decision to determine the membership of Manfred Barth and Heather Barth. (

c) alternatively, an Order granting judicial review of the Co-op’s decision to terminate the membership of the Applicants effective August 15, 2015 and a stay of the Co-op’s decision pending the completion of a judicial review. [ 3 ] The Co-op wants: an Order declaring that the membership and occupancy rights of the Barths in their Co-operative Housing unit were terminated effective August 15, 2015 and a writ of possession. [ 4 ] The Cross Applications were consolidated by Justice Germain. He ordered (in part): (

b) For greater certainty it is directed that the purposes of the Consolidated Action for judicial review of the decisions of the Board of Directors and the Members of Homestead Housing Cooperative Ltd. in question shall be pursuant to the application of Homestead Housing Cooperative Ltd. for declaratory relief pursuant to Section 401(2)(

a) of the Cooperative Act , c. C-28.1 (the “Act”) 2. The Consolidated Action shall be heard by a Queen’s Bench Master in Special Chambers on such date as may be agreed to or

directed by Court Order. In this regard, Homestead Housing Co-operative Ltd. shall file an Applicant’s Brief and Manfred and Heather Barth shall file a Respondents’ Brief in accordance with Rules and practice governing special applications before Queen’s Bench Masters. [ 5 ] The Order set the procedure leading up to this application. It is notable for the jurisdictional point, discussed below, that Justice Germain’s Order was a consent Order. 1.

Procedure and Jurisdiction [ 6 ] Two preliminary issues relate primarily to the ability of a Master to conduct a judicial review and, further, the limits on the relief that might be available to applicants in this forum. [ 7 ] The Court of Queen’s Bench Act , RSA 2000, c C-31, s 9 provides: 9(1) In regard to all matters brought or proposed to be brought in the Court, a master in chambers (

a) has the same power and may exercise the same jurisdiction as a judge sitting in chambers except in respect of (

i) appeals, applications in the nature of appeals, applications concerning the hearing of appeals and applications to vary or rescind an order made by a judge, ... (

b) with the consent of the parties, has the same power and may exercise the same jurisdiction as a judge for hearing, determining and disposing of all applications and other matters. ...

(3) Notwithstanding subsection (1), the power of and the jurisdiction exercisable by a master in chambers does not include (

a) the trial of the actions, (

b) the determination of disputed or contentious questions of act unless the parties agree to the disposition of the questions in chambers on affidavit evidence and without the trial of an issue or the hearing of oral evidence. ... (

d) applications relating to civil contempt or for an injunction or a judgment or order in the nature of certiorari, prohibition, mandamus or quo warranto , or (

e) anything that by law is required to be done by a judge. [ 8 ] The Alberta Rules of Court , r 3.15 provides: 3.15(1) An originating application must be filed in the form of an originating application for judicial review if the originating applicant seeks from the Court any one or more of the following remedies against a person or body whose decision, act or omission is subject to judicial review: (

a) an order in the nature of mandamus, prohibition, certiorari, quo warranto or habeas corpus; (

b) a declaration or injunction. [ 9 ] The Cooperatives Act , SA 2001, c C-28.1, ss 357(1) and (2), and s 401 provide: 357(1) On the application of a complainant, the Court may order the rectification of matters complained of if it is satisfied that (

a) an act or omission of a cooperative effects a result, (

b) the business or affairs of the cooperative are or have been carried on or conducted in a manner, or (

c) the powers of a director are being or have been exercised in a manner, that is oppressive or unfairly prejudicial to, or that unfairly disregards the interests of, a member or other security holder, creditor, director or officer of the cooperative.

(2) For the purposes of subsection (1), the Court may make any order that it considers appropriate ... ... 401(1) After a person’s membership and occupancy rights are terminated or if there is no member occupying a member unit, the non- profit continuing housing cooperative may apply to the Court for an order under subsection (2).

(2) On application under this section, the Court may make an order (

a) declaring that the person’s membership and occupancy rights are terminated or that there is no member occupying the unit, as the case may be,

(

b) directing that an order of possession be issued, (

c) directing the payment of an amount equal to the compensation owed to the non-profit continuing housing cooperative under section399(1)(

a) or (c), if any, (

d) for costs, and (

e) in respect of any other matter as the Court sees fit. (

i) Master’s Jurisdiction a) ‘Appeals’, or ‘Applications in the Nature of Appeals’ [10] Section 9(1)(a)(

i) prohibits a Master hearing appeals or applications in the nature of appeals. In Dunsmuir (below), at para 28,the Supreme Court of Canada indicated that “[j]udicial review is the means by which the courts supervise those who exercise statutorypowers, to ensure that they do not overstep their legal authority.” Judicial review is not strictly an appeal but it is arguably an applicationin the nature of an appeal. Section 9(1)(

b) permits Masters to exercise this jurisdiction by consent. The consent of the parties givesMasters the same power and jurisdiction as a judge – at least so far as the matters in section 9(1) are concerned. [11] The Order directing this matter to be heard by a Master was made by consent and I infer the parties consent to a Masterhearing this matter which is in the nature of an appeal.

b) Prerogative Writs [12] Section 9(3)(

d) puts orders in the nature of: certiorari, prohibition, mandamus, or quo warranto outside a Masters’jurisdiction. These remedies are some of the usual tools in the administrative law toolbox. Section 9(3) of the Court of Queen’s BenchAct does not include a power to confer Masters with this jurisdiction by consent so, in my view, these remedies are off-limits for thepurposes of this application. However, there is nothing preventing a Master from giving a declaration and directions.

List of Authorities [13] In addition to the statutory authorities cited above, the applicants and the Court refer to the following cases: Applicant’s Authorities 1. Ryegate (Tecumseh) Co-Operative Homes Inc v Stallard, (2000) 194 DCR (4th) 363; 2. Wcislo v. Ramsay Heights Co-operative Housing Ltd, 2002 ABCA 268 2002 ABCA 268; 3. Windward Co-Operative Homes Incorporated v. Shuster, (2007) (ON SCDC), 222 OAC 311; 4. DaCosta v City Edge Housing Co-Operative, 2003 BCSC 409; 5. University of Alberta v Alberta (Information and Privacy Commissioner), 2011 ABQB 699; 6. Eckervogt v British Columbia, 2004 BCCA 398; 7.

Bridgeland Riverside Community Association v Calgary (City)(1982), 1982 ABCA 138 , 135 DLR (3d) 724; 8. Alberta Treasury Branches v Leahy, 1999 ABQB 185. Respondent’s Authorities 1. Tamil Co-operative Homes Inc v Arulappah, (ON CA), 192 DLR (4th) 177 Ont CA; 2. Pushpanathan v Canada (Minister of Employment & Immigration), (SCC), [1998] 1 SCR 982; 3. New Brunswick (Board of Management) v Dunsmuir, 2008 SCC 9 , [2008] 1 SCR 190; 4. Chase v Charles – Cathedral Housing Co-op Ltd, 2008 MBQB 261; 5. Chisolm Place Housing Co-operative Inc v Hickox, 2013 ONSC 2215; 6. Cooperatives Act, SA 2001, c C-281; 7.

Changemakers Co-operative Homes (Kitchener) Inc v Andrassy, 1999 CarswellOnt 771; 8. Canadian Encyclopedic Digest Administrative Law IV.11-Standards of Review 9. Baker v Canada (Minister of Citizenship & Immigration), (SCC), [1999] 2 SCR 817;

10. Diagnostic and Statistical Manual of Mental Disorders, 5 th Edition – Diagnostic Criteria for Hoarding Disorder. By the Court 1. Slovenian Canadian Association of Edmonton v Koncar , 2014 ABQB 151 at para 29 ; 2. Lee v Yeung, 2012 ABQB 40 at para 31 ; 3. Knox v Conservative Party of Canada, 2007 ABCA 295 ; 4. ATCO Gas and Pipelines Ltd v Alberta (Utilities Commission), 2015 SCC 45 at para 27 , [2015] 3 SCR 219 ; 5. Alberta (Information and Privacy Commissioner) v Alberta Teachers’ Association, 2011 SCC 61 at para 34 , [2011] 3 SCR 654; 6. William Punnett Housing Co-operative Inc v Njoku, 2014 ONSC 5197 ; 7.

Harry Sherman Crowe Housing Co-operative Inc v Benjamin , 2014 ONSC 3744 at paras 18 , 23 (Ont Sup Ct J); 8. Chisolm Place Housing Co-operative Inc v Hickox , 2013 ONSC 2215 at paras 36-42 (Ont Sup Ct J); 9. Superior View Housing Co-operative Inc v Keefe , 2013 ONSC 7519 at para 6 (Ont Sup Ct J); 10. Fieldstone Co-operative Homes Inc v Rodriguez , 2011 ONSC 3660 at para 5 (Ont Div Ct), aff’g 2010 ONSC 5283 (Ont Sup Ct J); 11. Courtland Mews Co-Operative Housing Inc v Wood , 2011 ONSC 7495 at para 7 (Ont Div Ct); 12. Guhbawin Co-operative Housing Inc v Poulton , 2011 ONSC 7169 at paras 31 , 42 (Ont Sup Ct J); 13.

Rougemount Co-Operative Homes Inc v Plummer , 2010 ONSC 4423 at paras 11-14 (Ont Sup Ct J); 14. Windward Co-operative Homes Inc v Levy , 2014 ONSC 898 at paras 22-23 (Ont Sup Ct J); 15. Main-Gerrard Community Development Co-operative Inc v Dualeh , 2012 ONSC 164 at para 34 ; 16. Forestwood Co-operative Homes Inc v Blake , 2010 ONSC 1179 (Ont Sup Ct

J) at para 16 ; 17. Anand v Anand, 2016 ABCA 23 ; 18. FJN v JK, 2015 ABCA 353 ; 19. Franklin Rodeo Company v Hertz Canada Limited, 2011 ABCA 364 ; 20. Newfoundland and Labrador Nurses’ Union v Newfoundland and Labrador (Treasury Board), 2011 SCC 62 ; 21. Wall v Judicial Committee of the Highwood Congregation of Jehovah's Witnesses, 2016 ABCA 255 ; 22. British Columbia (Workers’ Compensation Appeal Tribunal) v Fraser Health Authority , 2016 SCC 25 23. Giguère v Chambre des notaires du Quèbec , 2004 SCC 1 at para 65 , [2004] 1 SCR 3.

Facts [ 14 ] It all started with plumbing leaks. [ 15 ] In August 2014, a contractor went to the Barths’ home to deal with water leaks and moisture problems that had been identified in an earlier inspection. The contractor noted that the place was worn and very dirty. It smelled strongly of dog urine. The toilet had been leaking for years. There was (apparently) mould in the bathroom. [ 16 ] The toilet leak had been identified about five years earlier.

Manfred Barth said he was going to fix it himself but, obviously, never did, or never properly did. [ 17 ] In September, the property manager reported to the Board that, in his opinion, the Barths’ unit represented serious health issues both to the Barths and to the neighbouring unit holders. [ 18 ] In November 2014, the Board advised the Barths that they proposed to move them from their three bedroom unit to a two bedroom unit so that their unit could be repaired and remediated. [ 19 ] In February 2015, ASPR Environmental Health and Safety conducted an inspection.

They did not detect visible mould growth but could not take samples. They, and the Board’s representative, noted that the dryer vent was disconnected and that there was a substantial amount of lint everywhere; in their opinion, creating a fire hazard. Again, there was an overwhelming smell of dog urine. The condition of the place and the amount of belongings stored there seemed to suggest hoarding behaviour. [ 20 ] The Barths are not young anymore. They were founding members of the Co-op and have lived in their home since February

1983. A Fork in the Road [21] In April 2015, the Board offered to move the Barths to another unit but required that the Barths: 1. Agree to move [permanently] to [another two-bedroom unit] in the Cooperative. The Cooperative will hire a mover, professionalorganizer and/or cleaner to assist you with the move. 2. Agree that all garbage or hazardous materials (including materials that you have hoarded in your Unit) will not be moved to thenew unit, and that you will assist the movers and professional organizer/cleaners who are taking

part in the move to separate goodswhich can be moved from garbage which must be disposed of. 3. Agree to find another home for your dog and that you will not keep any pets in the new unit without the written consent of theBoard, which consent may be refused or granted subject to conditions. 4. Agree to immediately allow adequate access to the Unit for workmen to clean up the fire hazard in the basement of the unit. TheBoard is contacting a contractor and will advise you of the day. 5. Agree to complete the move by May 1, 2015. 6.

Agree to reach out to the Seniors Association of Greater Edmonton, ‘This Full House’ program and participate as soon as anopening becomes available. 7. Agree to retain the services of a qualified house cleaner on a bi-monthly basis. The Coop will assist you to obtain a subsidy for thecost of this service. 8. Deliver a copy of this letter with the agreement below, unconditionally signed by you, to the Board at 5202 144 Avenue,Edmonton, AB before 5:00 p.m. on Tuesday, April 21, 2015 (the “Agreement”) to the mailbox on the garage door. 9.

Allow access to the Unit on request to remove the fire hazard in accordance with the Agreement; and that you complete the movein accordance with the Agreement by the deadline referred to above, subject only to any extensions which may be agreed by theCooperative. 10. Provide the Co-operative with a list of accessibility accommodations that you require for Unit 5208 by April 21st to provide time forwork to be completed prior to move-in. Arrangements can be made to view unit 5208 through the Maintenance Director... [22] The Barths responded in writing.

They renewed their request for another three bedroom unit rather than a two bedroom unit.They did not respond substantively to some of the other conditions suggested by the Board. [23] Further inspection was done in May 2015. Mould air samples were taken and found to be within acceptable limits. There wassome improvement of the condition of the unit though the Board’s representative held the opinion that the Barths’ ‘hoarding behaviour’created a health and safety concern. [24] The Board held a meeting in May 2015, which Mr. Barth attended.

The minutes disclose his preference for a three bedroomunit and a willingness to go along with some of the conditions imposed by the Board, but not all of them. The Board decidedunanimously to terminate the Barths’ membership and occupancy rights. The Board’s decision was appealed to the members of the Co-op pursuant to

section 397 of the Cooperatives Act. Termination of the membership was upheld. This led to the now consolidated cross-applications, and the Order noted above. Law [25] As this matter is somewhat off the beaten path for Masters, it is worthwhile spending some time with the analytical exercisethat goes into this type of application. Private/Public [26] Can a private organization be judicially reviewed? Manderscheid J, in Slovenian Canadian (at para 29), after a review ofauthority, tells us that the Court can conduct a limited judicial review to determine whether (in that case) the Association violated its by-laws.

In Lee v Yeung, Macklin J said (paras 29-31): 29 Despite the historical distinction between public and private law remedies, the courts have interpreted the Rules of Court as givingteeth to the declaratory remedy in the private law context.

In Kaplan v Canadian Institute of Actuaries, (AB KB),161 AR 321, [1994] AJ No 868 (QB), Hunt J stated: 44 It seems to me that even if certiorari will not lie against a consensual tribunal, the court possesses broad enough powers under Rule75305 to grant the remedy it considers appropriate to the particular case, including the setting aside of an invalid decision or action... 30 In Falk v Calgary Real Estate Board Co-operative Ltd, 2000 ABQB 296, 265 AR 60, Rowbotham J considered Hunt J’s reasoning inKaplan and concluded:

13 I find that although the Board’s disciplinary tribunals are domestic, their decisions are subject to judicial review for the limited purposes discussed in Kaplan , supra. The court is entitled to review the decisions to determine whether the tribunals have acted within their jurisdiction; to ensure that decisions within their jurisdiction are not patently unreasonable ; and to prevent breaches of natural justice or fairness. In this case the decisions in question were within both tribunals’ jurisdictions.

Therefore, the substantive issue is whether these decisions should be set aside as being patently unreasonable ; and to prevent breaches of natural justice or fairness... [Emphasis added] 31 Accordingly it appears that while, historically, judicial review was only available as a public law remedy, Knox does confirm that private bodies are prima facie only subject to private law remedies. Kaplan and Falk emphasize that judicial review is available in relation to decisions of private bodies for limited purposes.

And now see: Wall v Judicial Committee of the Highwood Congregation of Jehovah's Witnesses (Wakeling JA, dissenting). [ 27 ] These cases leave no doubt that a limited judicial review of the decision of this private organization is available. Dunsmuir [ 28 ] In Dunsmuir Bastarache and Lebel JJ, writing for the majority said ( at para 28): By virtue of the rule of law principle, all exercises of public authority must find their source in law. All decision-making powers have legal limits, derived from the enabling statute itself , the common or civil law or the Constitution.

Judicial review is the means by which the courts supervise those who exercise statutory powers, to ensure that they do not overstep their legal authority. The function of judicial review is therefore to ensure the legality, the reasonableness and the fairness of the administrative process and its outcomes. [Emphasis added] This is the program to be followed. The first question is the standard of review to be applied to the decisions of the Housing Co-op. Correct or Reasonable? [ 29 ] The standard of review on a true question of jurisdiction is correctness ( Dunsmuir at para 59 ).

True questions of jurisdiction are rare and exceptional: Atco (para 27), Alberta Teachers (at para 34). In this respect, earlier cases involving housing co-operatives such as Chase have to be treated with caution. [ 30 ] The starting point here, and the almost universal starting point in a broad spectrum of cases unless a statute modifies it ( Fraser Health Authority ) is ‘reasonableness’. Deference will automatically be given to decision makers on questions of discretion or policy, or where legal and factual issues are intertwined: Dunsmuir at paras 49, 53 .

Reasonableness as the standard of review is a rebuttable presumption if the body is interpreting its own statutes; as familiarity (if not expertise), is presumed ( Dunsmuir at para 54 ; Alberta Teachers at para 34). [ 31 ] In this case, the deferential standard of reasonableness applies to the decision to evict the Barths. The Standard in Context [ 32 ] This step consists of two parts. The first

part involves asking whether the issue has been determined by other binding authorities. If not, then the second part of the second step is to examine: (

i) whether there is a privative clause; (ii) the purpose of the decision-making body as determined by the enabling legislation; (iii) the nature of the question at issue; (iv) the expertise (if any) of the tribunal. Dunsmuir (para 64 ). Binding Authority? [ 33 ] There are no Alberta cases interpreting section 401(2)(

a) of the Cooperatives Act (‘declaring that the person’s membership and occupancy rights are terminated’); although the standard of review in Alberta involving cooperatives and other non-profits has generally been accepted as reasonableness. [ 34 ] The language in the

section at issue is identical to

section 171.13(1)(

a) of the Ontario Cooperative Corporations Act . Happily, we have the post- Dunsmuir decision of Justice Perell in William Punnett Housing Co-op . In that case (at paras 36-57), Justice Perell comprehensively reviewed the authority [1] and concluded (at para 38) that the standard of review of the decisions of a Co-operative is a standard of reasonableness; in part based on the rational that the members “have democratically agreed to live together under a common set of mutual obligations”.

Similar logic might apply by analogy to the boards of condominium corporations. [ 35 ] Once membership and occupancy rights are terminated, the Board must obtain a Writ of Possession in order to regain possession of the unit: sections 400, 401(Ontario

section 171.13 (1)).

[ 36 ] Among the issues identified by the Board were suspected mould growth, which was not substantiated by the expert retained by them, and excessive lint in the laundry area. This latter would constitute a breach of clause 6.4 of By-law 2 which prevents the keeping of combustible flammable goods or materials. It could also have presented a hazard to other occupants of the Co-op. [ 37 ] The Barths limited the Board’s access to the unit for repair; in breach of clause 18.3 of By-law 2.

The By-laws contemplate members looking after their unit as any responsible homeowner might and reporting more significant problems so they can be attended to by the Co-operative (By-law 2 clauses 18.2-6). They also permit the Board to remedy issues made necessary by a member’s negligence and carelessness. [ 38 ] I note, however, that the issues appear to have been entirely confined to the Barth’s unit. There is weak conjectural evidence about mould. There is at least a theoretical risk posed to other members to the extent that lint accumulation might constitute a fire risk.

I am not aware of any reported incidents affecting the health and safety of other residents over the roughly 33 year period the Barths have resided in their unit at the Co-op. I also note that there appears to be no power or apparent qualification or expertise on the part of the Board to diagnose psychological conditions. The Board has the power to remediate the Barths’ unit at The Barths’ cost and the Barths have a duty to let them do it.

I appreciate that there are questions of degree here but this unit plainly needed significant attention. [ 39 ] Dunsmuir requires that a court conduct a review for reasonableness of decision (at para 47): ... reasonableness is concerned mostly with existence of justification, transparency and intelligibility within the decision-making process . But it is also concerned with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and the law. [Emphasis added].

Application [ 40 ] If we go through the list of requirements, or conditions presented to the Barths by way of the Board ultimatum (listed above in para 21) we can conclude: 1. Move Units [ 41 ] However practical and even cost-saving it might have been to relocate the Barths to another unit so that their unit could be remediated, there is no apparent power in a Board to require a member to vacate their unit permanently, unless their membership is terminated and a Writ of Possession is obtained.

A temporary accommodation while repair and remediation is undertaking is something that should come from a unit-holder, not the Board. In a manner of speaking, this first condition put the cart before the horse. 2. Clean-Up [ 42 ] There is no doubt that the Board has power to require the Barths to provide access to clean up such things as a lint fire hazard in the basement of the unit. If water leaks and mould growth are substantiated and the unit holder did not attend to these things, the Board would have the power to deal with these items as well.

Beyond that, however, there is no power on the Board to ‘edit’ a members’ possessions; even though they may be valueless, so long as they are not a hazard and do not contravene any By-law. 3. Re-homing the Dog [ 43 ] The Board has no power to require that the Barths’ dog be re-homed or that written permission be obtained before another pet is acquired. 4. House Cleaning [ 44 ] The Board has no power to require a resident to retain a qualified house cleaner on a bi-monthly basis. 5.

Psychological Help [ 45 ] The Board has no power to require a member to seek and participate in counselling; much less for a condition that the Board itself has diagnosed. [ 46 ] As noted in these reasons, the decision of the Board was practical, considerate and common-sense. However, the ultimatum involved choices the Board had no power to invoke, and in my view, took the decision outside the range of outcomes that are defensible in respect of the facts and the law.

I am unable to say that the vote to terminate the Barths’ membership and occupancy right was not premised on their failure to meet the conditions the Board had no power to impose. The result, accordingly, is tainted. Procedural Fairness [ 47 ] The Barths have also raised the issue of procedural fairness. In this respect the following principles are applicable: (

i) Issues of procedural fairness are reviewed for correctness: Anand v Anand , 2016 ABCA 23 at para 8 ; FJN v JK , 2015 ABCA 353 at para 6 ; Franklin Rodeo Company Ltd v Hertz Canada Limited , 2011 ABCA 364 at para 12 , 515 AR 354.

(ii) Adequacy (or insufficiency) of the written reasons for the tribunal’s decision is not a stand-alone basis for quashing a decision. The reasons must be read together with the outcome and serve the purpose of showing whether the result falls within a range of possible outcomes: Newfoundland and Labrador Nurses’ Union v Newfoundland and Labrador (Treasury Board) , 2011 SCC 62 at para 14 , [2011] 3 SCR 708. The Board was cautious in advising the Barths of their options; including the right to have counsel present at the May Board meeting.

Although it is unnecessary to decide the case on this basis, there was no reviewable breach of procedural fairness on the facts presented to the Court. This is not a decisive factor in this case.

Disposition [ 48 ] In Giguère v Chambre des notaires du Quèbec , the Supreme Court of Canada held that “once it has been determined that an administrative tribunal has [rendered] an unreasonable decision on a matter within its jurisdiction, the case must, in theory, be sent back to it.” However, the Court also tells us that (para 66): A court of law may render a decision on the merits if returning the case to the administrative tribunal would be pointless... Such is also the case when, once an illegality has been corrected, the administrative decision-maker’s jurisdiction has no foundation in law...

The courts may also intervene in cases where, in light of the circumstances and the evidence in the record, only one

interpretation or solution is possible, that is where any other

interpretation or solution would be unreasonable... It is also accepted that a case may not be sent back to the competent authority if it is no longer fit to act, such as in cases where there is a reasonable apprehension of bias. [ 49 ] In the circumstances of this case, and in the context of the provision of the Cooperatives Act , ss 356-357, it appears that the Court has the power to intervene and ‘rectify’ a complaint under the Cooperatives Act , instead of remitting the matter back to the Board of Directors of the Cooperative.

Though in this case, the relief is qualified by the limits on a Master’s jurisdiction. [ 50 ] In the result, the declaration and Writ of Possession sought by the Board is denied. The relief requested by the Barths is allowed to the extent that the decision of the Board and the subsequent vote are declared to be of no force and effect. [ 51 ] It follows from this that one of two things can happen. The Barths may well have remediated the unit on their own in the time between the hearing of this application and this decision.

If the unit has not yet been brought to a reasonable standard, the Board might well require the Barths to provide access for repair and remediation. The Barths can request alternate accommodation while this process is completed; though unless they agree, they should be able to return to their three-bedroom unit afterward. If they are not able to agree to these terms, membership and occupancy should again be put to a vote. Dated at the City of Edmonton, Alberta this 27 th day of September, 2016. W. S. Schlosser M.C.C.Q.B.A. Appearances: Brian Kaliel, Q.C.

Miller Thomson LLP for the Applicant Raj Deol Ritzen Oliveri LLP for the Respondents

_______________________________________________________ Corrigendum of the Reasons for Judgment of W. S. Schlosser W. S. Schlosser, a Master _______________________________________________________ In paragraph [43] the word possession has been changed to read permission.