KENNETH JACK SILZER v. EVETTE CAROL SILZER, 2023 SKKB 125

KING’S BENCH FOR SASKATCHEWAN Citation: 2023 SKKB 125 Date: 202 3 06 16 Docket: KBG-RG-02606-2022 Judicial Centre : Regina BETWEEN: KENNETH JACK SILZER AND EVETTE CAROL SILZER APPLICANTS - and - GEORGE TAYLOR HOUSING CO-OPERATIVE LTD., AND LINDA SLOWSKI AND DEBBIE STEPENOFF RESPONDENTS - and – LYNN FRADETTE INTERVENOR Appearing: David R. Barth for the applicants Samuel Edmondson for the respondents Lynn Fradette self-represented JUDGMENT BERGBUSCH J.

JUNE 16, 2023 introduCtion [ 1 ] The applicants, Kenneth Jack Silzer and Evette Carol Silzer [Silzers], are members of a housing co-operative, George Taylor Housing Co-operative Ltd. [Co-op]. They have applied summarily, pursuant to ss. 190 and 193 of The Co-operatives Act,

1996 , SS 1996, c C-37.3 [ Act ], for relief from alleged oppressive conduct by the Co-op and two of its directors. [ 2 ] The dispute concerns the applicants’ alleged entitlement as members of the Co-op to relocate from one two- bedroom suite to another. The disputed suite [Unit #101] is presently occupied by a recently admitted member, Lynn Fradette. The Silzers contend that they had staked their claim to Unit #101, in accordance with a Co-op policy authorizing internal moves by members into vacant suites.

The Silzers claim the Co-op’s failure to give effect to their expressed interest in moving to Unit #101 when it became vacant was oppressive, unfairly prejudicial to them, and unfairly disregarded their interests as members. The Silzers seek an order that would, in effect, evict Ms. Fradette from Unit #101 so they can relocate there. [ 3 ] The Silzers also seek orders removing the respondents, Linda Slowski and Debbie Stepenoff, as directors of the Co-op and for new elections for the vacant positions. They argue that Ms. Slowski and Ms.

Stepenoff should personally pay any legal expenses of the Co-op for this proceeding, any moving expenses of Ms. Fradette, and their costs on a solicitor-client basis. [ 4 ] Ms. Fradette has applied to be added as an intervenor in this proceeding so that she may make submissions to the court respecting the impact an order granting Unit #101 to the Silzers would have on her. [ 5 ] For the reasons which follow, Ms. Fradette’s application to be added as an intervenor is granted. The Silzers’ application for relief pursuant to the oppression remedy is dismissed with costs.

Background [ 6 ] The Co-op is a 50-suite housing co-operative formed on April 6, 1981, located at 1703 Oxford Street, Regina, Saskatchewan. [ 7 ] Effective May 17, 2022, the directors of the Co-op [Board] were the following persons: Pat Donison (president), Linda Slowski (vice-president), Debbie Stepenoff (secretary-treasurer), Frances Gaebel, Marlene McMurdo, Bonnie Rieder, Barbara Romanow, and Les Silzer. When Ms. Donison resigned as president on about August 29, 2022, Ms. Slowski succeeded her in that role. [ 8 ] The Co-op operates under bylaws [Bylaws] approved by the members on April 24, 2019.

Certain aspects of the Bylaws will be discussed in detail below. [ 9 ] Kenneth and Evette Silzer presently occupy Unit #313, a two-bedroom suite on the third floor of the building. [ 10 ] Ms. Silzer has been a member of the Co-op since 2011 and was a director of the Co-op and its secretary- treasurer for ten years, until about May 17, 2022. There is no direct evidence of the length of time that Mr. Silzer has been a member, but I infer that he became a member at the same time as his spouse. [ 11 ] The respondent Debbie Stepenoff is a member of the Co-op and became a director on about May 17, 2022.

In her affidavit, Ms. Stepenoff avers that the Co-op’s policy regarding single individuals moving into two-bedroom units has changed several times between allowing and disallowing such moves. She says that this issue was considered by the Board on May 16, 2016, December 27, 2021, January 31, 2022, and February 28, 2022. [ 12 ] The minutes of directors’ meetings on May 16, 2016, and December 27, 2021, are not in evidence. However, a letter dated December 28, 2021, from the Board to Ms.

Stepenoff denied her request to move into a two-bedroom unit for the following reasons: Thank you for your letter regarding your request to move into a two bedroom suite. A policy dated May 30, 2016 states: A SINGLE PERSON MOVING INTO A TWO BEDROOM ONLY IF THERE ARE NO COUPLES ON OUR WAITING LIST THEN ONE WOULD BE OFFERED TO A SINGLE PERSON IN OUR CO-OP. The Board of Directors discussed this in our Board Meeting on Monday December 27, 2021 and a motion was made by Evete Silzer, seconded by Marlene McMurdo….

NO EXSISTING TENANTS WILL BE ALLOWED TO MOVE TO ANY OTHER SUITE, EXCEPT FOR A SINGLE PERSON LIVING IN A TWO BEDROOM SUITE THAT WANTS TO MOVE TO A ONE BEDROOM. The Board of Directors present unanimously voted to accept this Policy. [errors and emphasis in original] (Affidavit of Debbie Stepenoff, Exhibit

B) It is noteworthy that, in response to Ms. Stepenoff’s request as a single person to move into a two-bedroom unit, the Board, on a motion made by Ms. Silzer, changed the policy so that no current members could move from one suite to another, except for single persons who requested to move from a two- to a one-bedroom unit. [ 13 ] The Board revisited its policy related to internal moves at its next meeting on January 31, 2022. The relevant portion of the minutes [January Minutes] reads: Policy Revision from December 27, 2021 Single members moving into a two bedroom suite was discussed again.

The revision to the policy has now been revised as follows: Evette’s recommendation to the Board is we allow single members to move into a two bedroom suite ONLY IF WE DO NOT HAVE ANY COUPLES ON OUR WAITING LIST.

AND: 1. If we do not have couples on the waiting list the suite in question will be posted on the bulletin board and all members will be given the opportunity to apply for a two bedroom suite. If we have a number of members applying for the same suite, a decision of who gets the suite will be based seniority according to the members endorsed housing agreement. A one-time move for members will be allowed and no future moves into another suite will be allowed. [errors and emphasis in original] (Affidavit of Evette Silzer, Exhibit C) [ 14 ] The January Minutes do not record a motion adopting the revised policy.

At the next Board meeting, held on February 28, 2022, the directors adopted the minutes from the prior meeting, but nothing specific was documented about the policy. [ 15 ] Ms. Stepenoff avers that the Board received information after the February 28, 2022 meeting that the approximate cost to renovate one-bedroom units was $10,000, and $12,000 for two-bedroom units. She explains that a member relocating from one unit to another results in the Co-op incurring the expense to renovate two units, the member’s new suite and the suite vacated by that member.

The Board was concerned about unnecessary renovation costs and whether such expenses were consistent with responsible stewardship of the Co-op’s resources. [ 16 ] Ms. Silzer disputes that the cost to renovate a unit is so high, attesting that Unit #102 was upgraded in July 2022 at a cost of about $6,700. She also says that every member is allowed an upgrade every ten years or sooner if their suite has excess wear and tear and says that, as the Co-op’s former treasurer, she is aware that money was allocated for six suite upgrades per year. Ms.

Silzer has not filed any documentary evidence, such as a written policy or Board minutes, regarding suite renovations. [ 17 ] The present controversy arose after the occupant of Unit #101 (a two-bedroom unit) gave notice sometime in August 2022 that he was moving out. [ 18 ] On August 24, 2022, the Board posted a notice [Notice] on the Co-op’s bulletin board that a two-bedroom suite, Unit #101, would be available as of November 1, 2022, and applications for the unit were open until September 9, 2022.

The Notice read as follows: August 24, 2022 ATTENTION: ALL MEMBERS There will be a 2 Bedroom Suite available #101 Possible November 1 st , 2022 Depending on Suppliers and Contractors Priority will be given to Member’s Seniority. Closing date on applications will be September 9 th , 2022 Members Names [a space was left for members to indicate their interest] (Affidavit of Evette Silzer, Exhibit F) [ 19 ] The Silzers signed the Notice, expressing their interest in Unit #101. No one else signed the Notice. [ 20 ] The Co-op has numerous standing committees, including a membership committee.

In August 2022, the membership committee consisted of five directors – Debbie Stepenoff (chairperson), Marlene McMurdo (co-chairperson), Pat Donison, Frances Gaebel, and Linda Slowski – and two additional Co-op members, Betty Mercer and Heather Morency. [ 21 ] On August 25, 2022, Ms. Stepenoff submitted a membership report to the Board, advising, among other things, that the Notice had been posted on the bulletin board for any member to apply for Unit #101.

She also noted that only one couple was on the waiting list for a two-bedroom suite, and they had declined Unit #101. [ 22 ] On September 1, 2022, another couple, identified only as Mr. and Mrs. Blaus [Blauses], applied for a two- bedroom suite in the Co-op. On September 9, 2022, the membership committee interviewed the Blauses, and their membership application was accepted. The Blauses paid the $100.00 membership deposit for new members. However, during the meeting Ms. Mercer told the couple that they would not be allocated Unit #101, as the Silzers were entitled to that unit. Ms.

Mercer advised the couple that Unit #313 (the Silzers’ current unit) was also not available as it was going to another couple on the waiting list. Ms. Mercer told the Blauses that they would have to go on the Co-op’s waiting list. As a result, the Blauses withdrew their application and their deposit was returned. [ 23 ] Later on September 9, 2022, Ms. McMurdo, Ms. Mercer, and Ms. Gaebel prepared and sent a letter [Letter], ostensibly on behalf of the membership committee, to the Silzers advising them that they were the only members who had signed the Notice and that Unit #101 was granted to them.

The Letter reads, in relevant part, as follows: As you are the only members with seniority who have placed their names on letter, we are advising you that the Suite 101 is granted to you as long standing members of Oxford Manor.

We may ask you to allow us to show your present suite #313 to the couple who have been on the waiting list since April 20, 2022 requesting a 2 bedroom on the 2 nd or 3 rd floor, corner suite east side. (Affidavit of Evette Silzer, Exhibit

H) The membership committee did not approve the Letter before it was sent. [ 24 ] Ms. Silzer attests that, as a result of receiving the Letter, she expected to move into Unit #101 on November 1, 2022. [ 25 ] An issue arose regarding the committee’s authority to send the Letter to the Silzers. Ms. Mercer deposed in an affidavit that she has been on the committee for many years, and, in her experience, the Board had never assigned suites to members; rather, the membership committee had done so. She described the committee’s role of inspecting suites when residents moved out and before they moved in.

She did not suggest that the committee plays a role in reassigning vacant units to existing members. [ 26 ] According to Ms. Stepenoff, following the membership committee’s meeting with the Blauses, the Board reviewed the appointments of Ms. McMurdo and Ms. Mercer to the committee. They determined that Ms. McMurdo had been appointed co-chairperson more than two years earlier. On behalf of the Board, Ms. Slowski as president and Ms. Rieder as vice-president wrote to Ms. McMurdo on September 9, 2022 to advise her that she was no longer co-chairperson of the committee. They also wrote to Ms.

Mercer notifying her that her appointment to the committee had been terminated because she had exceeded her authority during the interview with the Blauses. [ 27 ] A special meeting of the Board was held on September 13, 2022. All directors were present except for Ms. McMurdo. The Board decided to solicit member input, through a vote, on the policy regarding member moves between suites. According to Ms. Stepenoff, the Board did not call a special meeting of members because the directors believed they had authority to enact policies and the member vote was simply consultative.

The minutes of the directors’ meeting were concise: Meeting was called to order; 1:00 pm RE: Moving suite to suite – Members to votes On moving from 2 Bedroom to another 2 Bedroom. Motioned by Les Silzer, Seconded by Bonnie Rieder Carried 6/2 Fran Gaebel and Brent McCuiag opposed. Meeting was adjourned at 1:30 pm Motioned by Les Silzer, Seconded by Fran Gaebel [errors in original] (Affidavit of Evette Silzer, Exhibit

I) According to Ms. Stepenoff, the Board had previously solicited members’ views on other topics by way of a vote. A recent example was a vote held on March 23, 2022, seeking input whether the Co-op should pay a salary to both Mr. McCuaig and Ms. Silzer as treasurer. [ 28 ] On September 13, 2022, the Board responded by letter to an inquiry by another member about moves by members from one suite to another. The Board’s letter advised that members would vote on the policy: Thank you for your letter concerning members moving from one suite to another.

This will be taken to the members to vote as to whether this will be continued practice or not. Our current procedure allows single members to move into a 2 bedroom only if there is no couples on the waiting list. The results of the Members votes will be posted on the front bulletin board. [errors in original] (Affidavit of Evette Silzer, Exhibit E) [ 29 ] The directors scheduled a vote for September 19, 2022. An announcement, posted on the Co-op’s bulletin board on September 14, 2022, set out the ballot question.

It read: September 14 th , 2022 TO: All Members George Taylor Housing Co-op We are having a Member’s vote on Monday September 19 th , 2022. This is a secret ballot.

Voting will be from 9:00 am to 11:00 am in the main lounge. Any member that works during the voting hours, please make arrangements with the office to vote earlier. Ballot Question : Should we allow members living in a 2 bedroom suite to move to another 2 bedroom suite. Suite upgrades cost between $10,000.00 To $12,000.00 each. Vote YES to allow moving from one suite to another suite. Vote NO if moving to another suite should not be allowed. (Exceptions; single person living in a 2 bedroom suite can move to a 1 bedroom or couple living in a 1 bedroom can move to a 2 bedroom suite.

Also a single who has a new partner/room mate can move to a 2 bedroom suite. These moves will continue to be allowed). Board of Directors. [errors in original] (Affidavit of Evette Silzer, Exhibit K) [ 30 ] The Silzers sent several letters to the Board requesting a 30-day delay of the vote, alleging non-compliance with the notice requirements of the Bylaws and misinformation by the Board in its response to the member inquiry about the policy and in the vote announcement. On September 18, 2022, three directors resigned from the Board.

The applicants filed their resignation letters as exhibits to the affidavit of Ms. Silzer. Since this is self-evidently hearsay, I draw little from the letters except to observe that they express various concerns about the conduct of Ms. Stepenoff and Ms. Slowski at Board meetings but do not mention the controversy over the policy about member moves. [ 31 ] The vote took place on September 19, 2022. Of the Co-op’s 65 members, 36 voted not to allow members to move from one unit to another; 19 voted in favour of such moves; one ballot was spoiled; and nine members did not vote.

The Silzers did not vote because they viewed the vote as a special members meeting called with inadequate notice. [ 32 ] On October 5, 2022, counsel for the applicants wrote to the Co-op Board, seeking confirmation that the Silzers were entitled to move into Unit #101. The Board did not respond. [ 33 ] On October 31, 2022, Ms. Fradette moved into Unit #101. In their affidavits, Ms. Fradette and Mr. Silzer give different accounts of a conversation they had while Ms. Fradette was moving in, during which Mr. Silzer explained to Ms. Fradette that a lawsuit was in progress regarding the suite.

While their impressions of the encounter differ, I need say no more about this episode as it has no bearing on the outcome. Issues [ 34 ] Several issues must be determined in this proceeding: (

a) Whether Ms. Fradette’s application for intervenor status should be granted; (

b) Whether the Silzers’ application for relief under the oppression remedy can be decided summarily; (

c) Whether the Silzers had a reasonable expectation that they would be permitted to move into Unit #101; (

d) If so, whether the Silzers’ reasonable expectation was violated by the Co-op in a manner that was oppressive of, unfairly prejudicial to, or unfairly disregarded their interests; and (

e) If so, what remedy is appropriate in the circumstances. Analysis Application to Intervene [ 35 ] When this matter originally came before the judge presiding in chambers on November 24, 2022, the Co-op took the position that it should be adjourned so that notice could be given to Ms. Fradette, as the originating application seeks relief that would substantially affect her. This request was granted. [ 36 ] Following service, Ms. Fradette applied for status to intervene in this proceeding.

She relies on Rule 2-12 of The Queen’s Bench Rules , which reads: 2-12 On application, the Court may grant status to a person to intervene in an action subject to any terms and conditions and with the rights and privileges specified by the Court. [ 37 ] To avoid any unnecessary delay, I heard Ms. Fradette’s application at the same time as the Silzers’ application and reserved my decision on both. [ 38 ] The court’s discretionary authority to grant leave to intervene was summarized by Brown J. in Saskatchewan

(Environment) v Saskatchewan Government Employees Union , 2016 SKQB 250 at para 41 . Justice Brown enumerated a non-exhaustive list of considerations that may inform the decision whether to grant intervenor status: [41] The granting of intervenor status is discretionary and should be exercised sparingly. Within the ambit of that discretion, CIFFC as an applicant seeking to be made an intervenor in this Queen’s Bench matter pursuant to Rule 2-12 should be prepared to address the following: a. A sufficient interest in the outcome of the matter must be shown such that their involvement is warranted.

An outcome that adversely affects them may well be considered sufficient to meet this criterion; b. There must exist the reasonable prospect that the process will be advanced or improved by their addition as an intervenor. This includes demonstrating that, as an intervenor, they will bring a new perspective or special expertise to the proceedings that would not be available without their participation. Merely echoing the position of one or more of the parties indicates they will not provide the requisite value; c.

As an intervenor they cannot seek to increase the number of issues the parties themselves have included in the proceeding; d. Adding them as an intervenor must meet the goals and objectives identified by Rule 1-3 such that the issues raised by the litigation will be heard with reasonable dispatch and the matter will not be overwhelmed with procedure by virtue of their inclusion as an intervenor; e. Adding them as an intervenor must not unduly prejudice one of the parties; f. The intervention should not transform the court into a political arena; and g.

The court is not bound by any of these factors in determining an application for intervention but must balance these factors against the convenience, efficiency and social purpose of moving the case forward with only the persons directly involved in the proceeding . [ 39 ] Ms. Fradette deposed that she is 69 years old and resides alone. She is retired and has a modest monthly income, made up of her Canada pension, old age security and public employee pension plan [PEPP] benefits. She worked for SaskTel for 17 years and as a teacher’s assistant for 3.

She expects her PEPP benefits will be depleted when she reaches age 78. She moved into Unit #101 on October 31, 2022, and entered into a housing agreement with the Co-op on that date. Under that agreement, Ms. Fradette pays a monthly “housing charge” determined by the Board, based upon her fair share of the sum required by the Co-op to meet its annual expenses. According to Mr. Silzer, a two-bedroom suite costs $862.00 per month, while a one-bedroom suite costs $778.00. [ 40 ] Ms.

Fradette says that she made Unit #101 her home, exhausting most of her savings to do so, and has nowhere to live if she is required to move out. She looked for other accommodation but could not find anything affordable. She was looking forward to living in a housing co-operative as she expected to become part of a community, participating in projects and activities while making new friends. She is “heartbroken” by the current dispute and believes the stress has affected her health. [ 41 ] Since the relief sought by the Silzers would dispossess Ms. Fradette of Unit #101, Ms.

Fradette has a sufficient interest in the outcome of the proceeding. Further, she presented a viewpoint distinct from that of the other parties. Her participation did not delay the hearing of the Silzers’ application, widen the lis between the parties, or prejudice any of the parties. Finally, hearing Ms. Fradette’s position was useful to the court in considering what relief, if any, is appropriate in this case. [ 42 ] For the foregoing reasons I grant Ms. Fradette’s application for status as an intervenor in this proceeding.

The Oppression Remedy in The Co-operatives Act, 1996 [ 43 ] The applicants rely upon the oppression remedy found in

Part XVI of the Act . A “complainant” entitled to resort to this remedy includes “a member of a co-operative”: s. 188 (

a) of the Act . The Silzers meet the definition of complainants within the intendment of the Act . [ 44 ]

Section 190 confers on complainants the right to apply to the court for relief from oppression by the co- operative or its directors and cloaks the court with authority to grant a broad array of orders to remedy the matters complained of: 190(1) A complainant may apply to the court for an order pursuant to this

section on any of the following grounds: (

a) that

an act or omission of the co-operative effects a result 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 co-operative; (

b) that the business or affairs of the co-operative are or have been carried on or conducted 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 co- operative; or (

c) that the powers of the directors of the co-operative are 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 co-operative.

(2) Where the court is satisfied that any of the grounds set out in clauses (1)(

a) to (

c) is established, the court may make any order to rectify the matters complained of that it considers appropriate, including an order: (

a) restraining the conduct complained of; (

b) appointing a receiver or receiver-manager;

(

c) regulating the affairs of a co-operative by amending its articles or bylaws; (

d) directing an issue or exchange of securities; (

e) directing changes in the directors; (

f) subject to subsection (4), directing a co-operative or any other person to purchase securities of a security holder; (

g) subject to subsection (4), directing a co-operative or any other person to pay to a security holder any part of the moneys paid by the security holder for securities; (

h) subject to subsection (4), directing a co-operative to repay member loans; (

i) varying or setting aside a transaction or contract to which a co-operative is a party and compensating the co-operative or any other party to the transaction or contract; (

j) compensating an aggrieved person; (

k) directing rectification of the registers or other records of a co-operative pursuant to

section 192; (

l) liquidating and dissolving the co-operative under the supervision of the registrar; (

m) directing a special audit pursuant to

section 180 or an investigation pursuant to

section 181; or (

n) requiring the trial of an issue. … [ 45 ] Subsection 191(1) provides that an application or action for relief from oppression is not to be dismissed on the basis that the alleged wrongdoing has been condoned by members of the co-operative, although members’ approval is to be considered by the court in making an order: 191(1) No application made and no action brought or intervened in pursuant to this

Part is to be stayed or dismissed by reason only that it is shown that an alleged breach of a right or duty owed to the co-operative or any of its subsidiaries has been or may be approved by the members, but evidence of approval by the members shall be taken into account by the court in making an order pursuant to this Part. … [ 46 ] Finally, s. 194 of the Act authorizes applications under

Part XVI to be brought summarily by “originating notice of motion or in any other manner that the rules of the court may provide.” As permitted by s. 194 of the Act and The Queen’s Bench Rules , the Silzers commenced this proceeding by originating application supported by affidavit evidence. [ 47 ] The leading Canadian authority on the oppression remedy is BCE Inc. v 1976 Debentureholders , 2008 SCC 69 , [2008] 3 SCR 560 [ BCE ]. In that decision, the Supreme Court devised a two-pronged approach to the oppression remedy.

First, a judge should consider whether the complainant has established the breach of a reasonable expectation. Second, the judge should determine if the conduct in issue amounts to oppression, unfair prejudice or unfair disregard of the complainant’s interests: [56] In our view, the best approach to the

interpretation of s. 241(2) is one that combines the two approaches developed in the cases. One should look first to the principles underlying the oppression remedy, and in particular the concept of reasonable expectations. If a breach of a reasonable expectation is established, one must go on to consider whether the conduct complained of amounts to “oppression”, “unfair prejudice” or “unfair disregard” as set out in s. 241(2) of the CBCA [

Canada Business Corporations Act , RSC 1985, c C-44 ]. [ 48 ] Oppression is an equitable remedy, intended to ensure fairness, and the court has broad jurisdiction to enforce not simply what is legal but what is fair. This calls for the court to review business realities, not just legalities: BCE at para 57 . The oppression inquiry is fact specific, as explained by the Supreme Court at para. 59: [59] … What is just and equitable is judged by the reasonable expectations of the stakeholders in the context and in regard to the relationships at play .

Conduct that may be oppressive in one situation may not be in another. [Emphasis added] [ 49 ] Determining whether expectations are reasonable is objective and contextual, “having regard to the facts of the specific case, the relationships at issue, and the entire context, including the fact that there may be conflicting claims and expectations”: BCE at para 62 .

Although the focus is often on the conduct of directors and the impact of their actions on specific stakeholders, it must be recalled that directors are required to act in the best interests of the corporation and do not owe a duty to stakeholders: BCE at para 66 . [ 50 ] When directors assess what is in the best interests of a corporation, they may have to consider competing interests of numerous stakeholders, such as shareholders, employees, creditors, consumers, governments and the environment: BCE at para 40 .

Under the “business judgment rule”, judges should defer to directors’ business decisions so long as they “lie within a range of reasonable alternatives”: BCE at para 40 . A decision taken by directors in the good faith performance of their duties and in the best interests of the corporation is owed deference, even though that decision may involve choosing between conflicting interests to the benefit of some and the disadvantage of others: BCE at para 99 .

An expectation may not be reasonable if it conflicts with a decision made by the directors in the exercise of their business judgment. [ 51 ] A claimant must identify the expectations that he or she claims were violated and show that they were reasonably held: BCE at para 70 .

The Supreme Court identified several factors that would assist to determine whether a reasonable expectation exists: [72] Factors that emerge from the case law that are useful in determining whether a reasonable expectation exists include: general commercial practice; the nature of the corporation; the relationship between the parties; past practice; steps the claimant could have

taken to protect itself; representations and agreements; and the fair resolution of conflicting interests between corporate stakeholders. [52] If a reasonable expectation was violated, the complainant must still show that the impugned conduct wasoppressive, unfairly prejudicial, or unfairly disregarded the complainant’s interests. As the Supreme Court said in BCE at para 67: [67] Having discussed the concept of reasonable expectations that underlies the oppression remedy, we arrive at the second prong ofthe s. 241 oppression remedy. Even if reasonable, not every unmet expectation gives rise to claim under s. 241. The

section requiresthat the conduct complained of amount to “oppression”, “unfair prejudice” or “unfair disregard” of relevant interests. “Oppression”carries the sense of conduct that is coercive and abusive, and suggests bad faith. “Unfair prejudice” may admit of a less culpable state ofmind, that nevertheless has unfair consequences. Finally, “unfair disregard” of interests extends the remedy to ignoring an interest asbeing of no importance, contrary to the stakeholders’ reasonable expectations: see Koehnen [Markus Koehnen, Oppression and RelatedRemedies (Toronto: Thomson/Carswell, 2004)], at pp. 81-88.

The phrases describe, in adjectival terms, ways in which corporate actorsmay fail to meet the reasonable expectations of stakeholders. [Emphasis added] The three types of wrongful conduct for which the oppression remedy provides recourse are not “watertight compartments” and oftenoverlap: BCE at para 91. [53] The analytical framework articulated in BCE in the context of business corporations applies to versions of theoppression remedy found in many statutes.

For example, BCE was followed by the Saskatchewan Court of Appeal in Goertz v TheOwners Condominium Plan No. 98SA12401, 2018 SKCA 41 at para 136, [2018] 12 WWR 195 [Goertz] which addressed an allegationof oppression under s. 99.2 of The Condominium Property Act, 1993, SS 1993, c C-26.1.

Robertson J. recently applied the BCEframework to an application for relief under the oppression provisions of The Co-operatives Act, 1996: Blyth v Lakeside Machinery Co- operative Limited, 2019 SKQB 219, 94 BLR (5th) 24; see also Collins Barrow Vancouver v Collins Barrow National Cooperative Incorporated, 2015 BCSC 510 at paras 102-109, 45 BLR (5th) 269 [Collins].

I conclude that the general framework established in BCEshould also be followed in an application for relief from oppression involving a housing co-operative. [54] Further, the “business judgment rule” (discussed above) may also apply when oppression is alleged againstdirectors of legal entities other than business corporations, such as non-profit corporations and co-operatives: see, e.g., Goertz at paras57-58; FFM Holdings Ltd. v Lilydale Co-operative Ltd. (1998), (AB KB), 64 Alta LR (3d) 157 (WL) (Alta QB) atparas 38-40.

As the court said in Collins at para 110, “Care must be taken … not to interfere with the legitimate exercise of control by themajority or the function of the directors in managing the company …”

Summary Determination [55] The applicants approached this matter on the basis that it could be decided summarily in reliance on affidavitevidence and the respondents did not contend otherwise. I have considered whether there are any disputed facts that would require a trialand I have heeded the guidance of several decisions on this point, including Aquino v First Canadian Capital Corp. (1997), (SK CA), 148 Sask R 288 (CA) and Cummins v Silverman Oilfield Services Ltd., 2007 SKQB 228 at paras 23, 26.

From my reviewof the evidence, I am satisfied that there are no material questions of fact or issues of credibility in dispute that require a full trial or thetrial of an issue. [56] As the applicants seek a final order, the applicable standard of proof is on a balance of probabilities: Windels vReddekopp, 2023 SKCA 38 at para 89; Moosomin First Nation v 101061721 Saskatchewan Inc., 2010 SKCA 110 at para 26, [2011] 2WWR 193.

The Nature of Housing Co-operatives [57] In evaluating the reasonable expectations claimed by the Silzers, I must consider the context of this case and inparticular the characteristics of housing co-operatives and their relationship to their members. A co-operative is a body corporateorganized and operated on a co-operative basis: s. 2(1) of the Act.

Section 3 of the Act elaborates on what operating on a “co-operativebasis” means: 3 For the purposes of this Act, a body corporate is organized, operated and administered on a co-operative basis where: (

a) no member or delegate has more than one vote; (

b) no member or delegate is entitled to vote by proxy; (

c) its business is carried on primarily for the benefit of its members; (

d) its membership is voluntary and available, without any artificial restriction or any unlawful basis of discrimination, to any personwho can use its services and is willing to accept the responsibilities of membership; (

e) the limit on the interest or dividends on share capital that it pays does not exceed the prescribed rate; and (

f) any surplus or saving arising out of its operation is: (

i) used to develop its business; (ii) used to provide or improve common services to members; (iii) distributed among members in proportion to their patronage with the co-operative;

(iv) used to educate its members, officers or employees or the general public in the principles and techniques of economic and democratic co-operation; or (

v) distributed to non-profit, charitable or benevolent organizations. [ 58 ] Unlike business corporations, co-operatives operate on the democratic principle of one-member, one-vote, and their business is carried on primarily for the benefit of their members. Further, any surplus from a co-operative’s operations may be used to develop its business and provide common services to members, distributed as patronage dividends, or used for educational purposes, among other things. [ 59 ]

Part XXIII of the Act sets out additional provisions that apply to housing co-operatives in particular. Among other things, a “continuing housing co-operative” is a co-operative “whose primary purpose is to provide housing units for occupancy by its members as nearly as possible at cost ”: s. 247 of the Act [emphasis added]. Housing co-operatives charge a fee, defined as a “housing charge”, to their members to cover the costs of providing accommodation: s. 247.

Finally, the relationship between a housing co- operative and its members is deemed not to be that of a landlord to its tenants: s. 249. [ 60 ] The Co-op’s Bylaws also provide context. Membership is generally limited to retired educators and their spouses (if any) who reside full-time in the housing co-operative. New applications for membership are approved by the directors. The provisions governing eligibility for membership are the following:

ARTICLE 2 ELIGIBILITY FOR MEMBERSHIP 2.1 Membership A retired person who has been engaged in general or professional educational programs and/or the spouse of such persons, or such other persons as the Directors may admit from time to time, may apply for admission as a member by submitting a written application for the purchase of Shares of the Co-op, by providing payment of $500.00 for the purchase price of one such Share. 2.2 Approval by the Directors The Directors may, in their discretion, approve or refuse any application for membership or may postpone making a decision about any application for membership by Ordinary Resolution.

The Directors shall cause each applicant for membership to be notified in writing that the application has been approved or not approved. 2.3 Effective date of membership Membership is effective when all of the following conditions have been met: (

a) the Directors approve the application for membership; (

b) the applicant signs the Housing Agreement; (

c) the applicant complies with the occupancy requirements of

Article 2.4; and [sic] (

d) the applicant purchases one Share, unless such Share is owned jointly in which case the joint members shall purchase on Share between them. (

e) Any member who is approved shall be recorded in the Co-op’s register of members, and the Co-op shall provide a copy of these Bylaws and the Housing Agreement to such admitted member. 2.4 Membership limited to occupants Membership in the Co-op is limited to persons who live in the Unit in the Co-op on a fulltime basis as their principal residence ; however, the Directors may exempt, in their discretion and upon the terms they see fit, an existing member from the application of this Section. … [emphasis added] [ 61 ] While members are responsible for cleaning and daily upkeep of their unit, the Co-op is responsible “for the maintenance of the Unit in a safe, habitable and reasonable state of repair, the repair and replacement of fixtures, and any damage to the Unit (except where caused by the gross negligence or wilful misconduct of the member)”: s. 3.4 of the Bylaws. [ 62 ] To summarize, the Co-op is a housing co-operative consisting of 50 suites, which are the full-time residences of retired educators and their spouses.

The Co-op functions on a democratic basis for the benefit of its members. The Co-op is responsible for all costs of maintenance of the individual suites, except for cleaning and daily upkeep. The Co-op operates on a breakeven basis, as much as possible, and members pay a housing charge rather than rent. The evidence shows that the monthly fees paid by members to reside in the Co-op are modest compared to market rent. [ 63 ] Having briefly outlined the characteristics of the Co-op and its relationship to its members, I turn to the first branch of the oppression analysis.

The Reasonable Expectations Alleged by the Silzers [ 64 ] In their application, the Silzers take issue with two matters which they say violated their reasonable expectations. First, they say that the vote of members on the Co-op’s policy regarding suite transfers was not called with sufficient notice, contrary to the Bylaws. Second, they say that the Co-op did not follow its policy regarding member moves, thereby failing to give effect to their stated interest in moving into Unit #101. [ 65 ] The notice requirement relied upon by the Silzers is found at s. 16.5 of the Bylaws, which mirrors s. 105 of the Act .

Notice of the annual meeting of members and any special meeting of members must be given not less than 10 and not more than 50 days in advance of the meeting. However, shorter notice is permitted, provided the period of notice and means of giving it are sufficient to give every member a reasonable opportunity to attend: 16.5 Notice of meeting to be given Every member, or delegates must receive not less than 10 and not more than 50 days’ notice of every Annual General Meeting of the Co- op, or special meeting is to be proposed by: (

a) sending the notice by mail to the members, or delegates at the addresses given in the register; or (

b) by inserting the notice in not less than two issues of a newspaper circulated in the area served by the Co-op and in accordance with the requirements of the Act , and posting the notice in a place that, in the opinion of the Directors, is prominent and accessible to members Notwithstanding this

section 14.7, the Co-op may provide notice of an Annual General Meeting or a special meeting to its members, or delegates entitled to attend the meeting that is less than 10 days’ notice and given by a means other than the means described in (

a) or (

b) if the period of notice and means of giving the notice are sufficient to ensure that each member, or delegate has a reasonable opportunity to attend the meeting and exercise his or her vote. [errors in original] [ 66 ] The Silzers’ allegation that the member vote was called without sufficient notice does not withstand scrutiny. A member vote was not required at all, as the directors have authority to enact Co-op policies. The directors’ duties are found in

Article 19 of the Bylaws. While s. 19.1 is a boilerplate clause, s. 19.2 authorizes the directors to “propose” policies, rules, and regulations not inconsistent with the Act and the Bylaws:

ARTICLE 19 DIRECTORS 19.1 Duties of Directors The Directors must manage or supervise the management of the business of the Co-op in accordance with the responsibilities, duties, and powers set out in the Act , the Articles of the Co-op and these Bylaws and may exercise all the powers of the Co-op that are not required by the Act or the Bylaws to be exercised by the members. 19.2 Policies The Directors may propose policies, rules and regulations with regard to any matter not inconsistent with the Act and these Bylaws. … [ 67 ]

Section 1.1(

k) of the Bylaws defines “Policy” as “any policy or rule enacted by the Directors, from time to time” [emphasis added]. Thus, although s. 19.2 of the Bylaws uses the word “propose”, I conclude that the directors are empowered to make policies for the Co-op. Such policies do not require the members’ approval or ratification. [ 68 ] In her affidavit at para. 15, Ms. Silzer says that the “Respondent Board tried to retroactively vary the Bylaws and rescind the allocation of Unit #101 to us. …” [emphasis added]. In fact, the directors made no change to the Bylaws whatsoever.

Instead, they revised a policy that the Board had previously revised multiple times without formal member consultation or approval. [ 69 ] During directors’ meetings in December 2021 and January 2022, Ms. Silzer proposed revisions to the policy governing member moves. The Board does not appear to have doubted its authority to adopt the policy and did not consider seeking the policy’s approval or ratification by Co-op members. Given her active participation in these meetings and her lengthy tenure on the Board, Ms.

Silzer must have understood that authority to enact this policy rested with the directors, not the members, and an amendment to the Bylaws was not required. [ 70 ] The vote called by the directors in September 2022 was not a special meeting of members and the notice requirements in s. 16.5 of the Bylaws were not engaged. I accept Ms. Stepenoff’s explanation that the Board’s decision to call a vote of members was for consultative purposes only. She gave the example of another members vote that took place earlier in 2022, which also involved an issue concerning Ms.

Silzer. [ 71 ] The first reasonable expectation alleged by the Silzers is based upon the erroneous premise that the policy governing member moves amounted to an amendment to the Bylaws or required member approval. There is no objective basis for this expectation. I conclude that the Silzers did not have a reasonable expectation that a revision to the policy concerning member moves required member approval at a meeting called with no less than 10 and no more than 50 days’ notice.

[ 72 ] The second reasonable expectation alleged by the Silzers is that they would be permitted to move into Unit #101 in accordance with the policy as revised effective January 2022 once they indicated their interest in the unit and received confirmation by letter that the unit had been “granted” to them. [ 73 ] I also conclude that this expectation was not reasonable, for several reasons. [ 74 ] First, it is not supported by the Co-op’s past practice. The policy relied on by the Silzers had a brief history.

The Co-op’s policy from May 30, 2016, was that a single person would only be offered a two-bedroom unit if no couples were on the waiting list. The policy did not address internal transfers between suites at all. On December 27, 2021, the Board adopted a policy that current members were not permitted to move from one suite to another, except for single persons who could move from a two-bedroom to a one- bedroom suite. This policy was adopted unanimously by the directors on the motion of Ms. Silzer. [ 75 ] A revised policy was discussed at the Board’s next meeting on January 30, 2022.

The revision, also recommended by Ms. Silzer, was to the following effect: (

a) Single members could only move into two-bedroom suites if the Co-op did not have any couples on its waiting list; (

b) If the Co-op did not have a couple on its waiting list, the two-bedroom suite would be posted on the Co-op’s bulletin board and all members would have the opportunity to apply for it; (

c) If multiple members applied for the suite, it would be assigned based upon seniority; and (

d) Members would only be permitted to move once. I observe that, under the revised policy, a single member would have the strongest claim to a two-bedroom suite provided he or she had seniority. [ 76 ] The January Minutes do not indicate that the directors adopted the revision proposed by Ms. Silzer. The Board did adopt the January Minutes at the next meeting, but there was no motion approving the revision recommended by Ms. Silzer. Having said that, the Board did act as though the revised policy was in effect when, on August 24, 2022, it posted the Notice that Unit #101 was available.

My decision does not rest on whether the Board formally adopted the revised policy. [ 77 ] Concerning the Co-op’s past practice, Ms. Silzer also provided the example of three couples that had switched from one unit to another during her 11-year tenure.

However, apart from identifying these couples by name, she did not provide any particulars of these transfers, including whether these were moves from one-bedroom to two-bedroom units, or the Board policy, if any, in effect on those occasions. [ 78 ] Accordingly, the Co-op’s past practice does not reinforce the Silzers’ position that they reasonably expected they would be permitted to move to another two-bedroom suite because of their seniority. The revised policy had only been in place for a few months when the controversy arose.

Prior to that, the Co-op’s written policy was either silent on or prohibited internal member relocations. [ 79 ] Second, the fact that the Co-op is a housing co-operative operated at cost is relevant. In her affidavit, Ms. Stepenoff avers that the Co-op has to incur expenses every time a unit changes occupants. The Co-op is responsible for the costs of maintenance of each unit. In the case of Unit #101, before a new occupant could move in, the unit had to be renovated for its new occupant(s).

If current members could transfer from one unit to another, this effectively doubled the renovation costs incurred by the Co- op. This may explain why Ms. Silzer’s proposed revision permitted members to move one time only. It was certainly reasonable for the directors to be concerned about the unnecessary renovation costs to accommodate internal member moves.

In the end, the Co-op would have to pass these costs along to all members as part of their “housing charges.” [ 80 ] Balanced against the Co-op’s interest in avoiding unnecessary expenses are the reasons that the Silzers have provided for preferring Unit #101 to their existing two-bedroom suite located on the third floor. Ms. Silzer explained that Unit #101 is on the ground floor and vacancies on that floor are rare.

Unlike their present suite, which has a balcony, ground floor suites have access to a yard, which, she says, provides greater opportunity to socialize with other members and to have birthday parties for children and grandchildren. [ 81 ] The Silzers obviously believe that a ground-floor suite has attributes that make it more desirable than their current unit. These advantages, which appear modest when viewed objectively, offer scant support for a conclusion that their expectation was reasonable. If, for example, Mr. or Ms.

Silzer had reduced mobility that a ground-floor unit would accommodate, their position might be more understandable. However, their position would require the Co-op to prioritize their preference for more direct access to the Co-op’s yard over other concerns. [ 82 ] Third, a related consideration is that the directors’ business judgment is entitled to deference. It was certainly reasonable for the directors to review the policy again in September 2022 to consider whether the additional costs occasioned by internal moves could be justified. The Board was free to reconsider the policy at any time.

The directors had to balance the interests of individual occupants against the needs of the Co-op and its members as a whole. The directors have an obligation to manage the affairs of the Co- op prudently and in its best interests. Moreover, rather than simply imposing their view, the directors canvassed the members’ views through an advisory vote.

The fact that a solid majority of the members opposed internal moves is compelling, even if it is not determinative of the Silzers’ oppression claim. [ 83 ] Fourth, if the revised policy had been followed, Unit #101 should have been offered to another couple, the Blauses, rather than to the Silzers. The revised policy allowed existing members to transfer from one two-bedroom suite to another only if the Co-op did not have any couples on its waiting list.

On August 24, 2022, the day the Notice was posted on the Co-op’s bulletin board, one couple was on the Co-op’s waiting list, but they had expressed their preference for a suite on the second or third floor. The

Notice indicated that members had until September 9, 2022 to indicate their interest in Unit #101. However, on September 1, 2022, another couple (the Blauses) applied for residence in the Co-op. The Blauses were interviewed on September 9, 2022 by the membership committee and paid the required deposit. Had the revised policy been followed, the Blauses should have been offered Unit #101.

Instead, they were informed that Unit #101 was not available. [ 84 ] In their brief of argument, the applicants assert that the Co-op’s policy regarding the allocation of two-bedroom units was breached because Unit #101 was not offered to a couple on the waiting list: On November 1, 2022, a single third party began moving into Unit #101. Unit #101 is a double unit and according to policy had to be allocated to a couple. There was a couple on the waiting list for a double unit.

Allowing a single person to move into a double unit was a further breach of the Co-Op's policy. [ 85 ] It is not clear which couple the Silzers mean by this submission, except that it was not them since they were already members. Since the Silzers acknowledge another couple was on the waiting list, they could not have reasonably expected they would be allocated Unit #101. [ 86 ] Ms. Silzer also says that there were three single applicants on the waiting list ahead of Ms. Fradette. If Ms.

Fradette was granted membership and assigned Unit #101 ahead of other applicants on the Co-op’s waiting list, this does not advance the Silzers’ position that they have been wronged. [ 87 ] Fifth, Ms. Silzer attests that, after her husband and she received the Letter advising that they had been “granted” Unit #101, she expected they would move into that suite. This raises the question whether the membership committee, through this communication, created a reasonable expectation for the Silzers.

The Co-op’s Bylaws empower the directors to establish committees of directors and delegate any powers to such committees as they see fit. In the case of the membership committee, the guidelines in effect in the fall of 2022 were as follows: MEMBERSHIP COMMITTEE Appointment: The membership committee shall be comprised of five members to be appointed by the Board of Directors and shall be composed of the President, Vice-President, Secretary and two other members. The duties of the Membership Committee are as follows: a. Have applicant(

s) complete The George Taylor Housing Application and if approved after an interview, give a guided tour of the building, then collect one hundred ($100.000) [sic] for deposit on a purchase of a share. b. When a suite becomes available the applicant will complete and submit two copies of the Housing Agreement with balance of four hundred ($400.00) for one five hundred ($500.00) share, along with payment for first month of occupancy. c. Collect key deposit of ten dollars ($10.00) for a single person and twenty dollars ($20.00) for couples. This is for suite keys, building and post office box.

This deposit is to be returned upon vacating. d. Assign a parking space for the new members and collect parking fees. The committee has the right to re-assign parking stalls, if needed, to accommodate incapacitated members. e. Have new members fill out the “Member Information in case of emergency form” and return same to the office for filing in the member’s folder. f.

The Chairperson and Co-chairperson shall keep a card file of applicants on the waiting list and periodically review to keep updated. (Affidavit of Debbie Stepenoff, Exhibit A) [ 88 ] The guidelines, which are in essence terms of reference for the membership committee, authorize the committee to interview and approve applicants for membership to the Co-op. The committee has no authority to reallocate units among existing members or to authorize members to move from one suite to another. The committee’s duties were limited to considering new memberships.

In light of this, the membership committee had no authority to advise the Silzers that they had been granted Unit #101. As a long-time director of the Co-op who took particular interest in the Co-op’s policy concerning the allocation of suites, Ms. Silzer must have been aware of the membership committee’s limited authority. [ 89 ] I find that the Letter did not create a reasonable expectation that the Silzers could move into Unit #101.

Subsequent events, including the member vote called by the directors, contradicted that assumption. [ 90 ] Looking at the matter objectively, I conclude that the Silzers did not have a reasonable expectation that they would be permitted to move into Unit #101. Oppressive Conduct [ 91 ] Since I have found that the Silzers did not have a reasonable expectation that they were entitled to Unit #101, I do not need to consider whether the Board’s decision to allocate the unit instead to Ms. Fradette, a new member, was oppressive, unfairly

prejudicial, or unfairly disregarded the rights of the Silzers. However, I will address the second prong of the oppression test in case myconclusions to this point are incorrect. [92] Oppression has been described as conduct that is “ ‘burdensome, harsh and wrongful’, ‘a visible departure fromstandards of fair dealing’, and an ‘abuse of power’ going to the probity of how the corporation’s affairs are being conducted”: BCE atpara 92. The Co-op’s decision not to allocate Unit #101 to the Silzers bears none of these hallmarks.

The Silzers continue to enjoy thebenefits of a two-bedroom suite, just not the suite they hoped to move into. It would be a gross exaggeration to conclude that the Co-op’sdecision in these circumstances is burdensome, harsh, or wrongful or that it reflects a visible departure from the standard of fair dealing.The decision does not suggest a lack of probity in the manner in which the affairs of the Co-op are conducted.

I have no hesitation inconcluding that the Co-op’s decision in this case was not a “wrong of the most serious sort”: BCE at para 92. [93] “Unfair prejudice” has been characterized as less serious or offensive conduct that nevertheless causes materialharm to a complainant.

In the context of minority shareholders, examples of this conduct may include “squeezing out a minorityshareholder, failing to disclose related party transactions, changing corporate structure to drastically alter debt ratios, adopting a ‘poisonpill’ to prevent a takeover bid, paying dividends without a formal declaration, preferring some shareholders with management fees andpaying directors’ fees higher than the industry norm…”: BCE at para 93. These examples of corporate wrongs are difficult to analogizeto the context of a housing co-operative.

As an example, actions that would have the effect of squeezing out a member of the co-operativewould constitute unfair prejudice. [94] In this case, the Silzers’ complaint is that they have not benefitted from a policy that privileges their seniority ofmembership in the Co-op. The Silzers have been denied an advantage over other members. They say that they relied upon the revisedpolicy and the Letter, but the evidence does not show any steps taken by them in reliance. I do not see any unfairness in what occurred.

Ifind that the Silzers were not unfairly prejudiced by the Board’s decision not to allocate Unit #101 to them. [95] Finally, conduct amounting to an unfair disregard of a complainant’s rights or interests has been described as the“least serious of the injuries, or wrongs …” mentioned in the oppression remedy: BCE at para 94. In BCE, examples of this type ofwrongdoing “include favouring a director by failing to properly prosecute claims, improperly reducing a shareholder’s dividend, orfailing to deliver property belonging to the claimant”: BCE at para 94.

In Stech v Davies (1987), (AB KB), 53 AltaLR (2d) 373 (WL) (Alta QB) at para 17, the following explanation was provided for the “unfairly disregard” aspect of the oppressionremedy: [17] … In my view, they mean to unjustly or without cause, in the context of s. 234(2), pay no attention to, ignore or treat as of noimportance the interests of security holders, creditors, directors or officers of a corporation. [96] I conclude that the Co-op did not unjustly or without cause ignore or treat as of no importance the Silzers’interests.

From the evidence, it is apparent that the directors weighed the benefits of permitting member transfers within the Co-opagainst the additional costs occasioned by such moves. The directors obtained estimates of the costs to renovate suites. The Silzersdispute the magnitude of these expenses, but not the main point that the Co-op would incur additional costs if members were allowed tomove between suites. The court should be slow to intervene in a matter of internal governance which involves balancing betweencompeting interests.

Again, I see no unfairness in the outcome. [97] While I have considered each element of the oppression test separately, I reiterate that these are not watertightcompartments and my conclusions on one branch of the test may also apply to the others. Ultimately, I conclude that the Silzers were notoppressed and their interests were not unfairly prejudiced or unfairly disregarded in the circumstances.

Remedies Sought by the Applicants [98] Given my conclusions above, I will only comment briefly on the relief sought by the Silzers in their application. [99] The Silzers seek an order granting to them Unit #101, which would have the effect of unhousing Ms. Fradette.This unusual request under the oppression remedy reflects the particular context of housing co-operatives. The applicants did not cite anyreported decisions where relief akin to their request was granted, nor have I located any.

In argument they suggested that, since the faultlies with the Co-op, the Co-op will have to negotiate an acceptable resolution with Ms. Fradette in the aftermath of the court’s order.While the court’s remedial powers under s. 190(2) of the Act are very broad – authorizing the court to “make any order to rectify thematters complained of that it considers appropriate…” – remedies are directed toward correcting the wrongful conduct. An orderdispossessing Ms. Fradette, an innocent bystander, of Unit #101, would not be an appropriate remedy in the circumstances of this case.While it might be suggested that Ms.

Fradette could just move into Unit #313, currently occupied by the Silzers, the evidence was that acouple on the Co-op’s waiting list was next in line for that suite. [100] The Silzers also seek orders removing the respondents, Ms. Slowski and Ms. Stepenoff, as directors of the Co-opand for new elections for the vacant positions. Section 190(2)(

e) of the Act empowers the court to “direct changes in the directors.” Theremoval of directors is an exceptional remedy, rarely granted unless it is clearly necessary. In Wilson v Alharayeri, 2017 SCC 39 at paras47-48, [2017] 1 SCR 1037 [Wilson], the Supreme Court considered the circumstances when a director can be personally liable foroppression, holding that the oppressive conduct must be attributable to the director and the imposition of personal liability must be fit inall the circumstances.

The Supreme Court also explained that an order under the statutory remedy should go no further than necessary torectify the oppression: Wilson at para 53. Having regard for the principles outlined in Wilson (see paras 49-57), in my view this wouldnot be an appropriate case for removal of Ms. Slowski and Ms. Stepenoff as directors even if the applicants had made out their case forrelief under the oppression remedy.

Without addressing this point at length, I note that these two directors did not benefit personally fromthe Co-op’s decision not to grant Unit #101 to the Silzers, nor has it been shown that their removal as directors is necessary to rectify thealleged oppression. Alternative Methods for Resolving this Dispute [101] As noted earlier in this decision,

Part XXIII of the Act applies to the specific case of housing co-operatives.

Among other things, s. 251 prescribes that the bylaws of a housing co-operative must include certain provisions, including a mechanismfor resolving disputes between members and the co-operative: 251 In addition to the matters required to be set out in the bylaws pursuant to

section 8, a continuing housing co-operative’s bylaws arerequired to include: … (

d) a method or methods for the final settlement of disputes between the members and the co-operative; … [102] In this case, the Co-op’s Bylaws are non-compliant; they include a provision (Article 27) for resolving disputesbetween members, but not between members and the co-operative. The dispute between the Silzers and the Co-op might have beenresolved more cost-effectively outside of court had the Bylaws included the mandatory provision. [103] None of the parties raised the issue whether the dispute in this case should be determined pursuant to an alternatedispute resolution process.

All took it for granted that the oppression remedy can be invoked by members of a housing co-operative.Further, there is authority for the proposition that the oppression remedy is not a remedy of last resort: Canadian Opera Co. v 670800Ontario Inc. (1989), (ON SC), 69 OR (2d) 532 (Ont H Ct), aff’d (1990), (ON SC), 75 DLR (4th)765 (Ont Gen Div). Accordingly, I have proceeded on the basis that the oppression remedy is available in disputes involving housing co-operatives. Since I did not hear argument on this point, my reasons should not be taken as having decided this question.

Costs [1] The applicants seek an order that Ms. Slowski and Ms. Stepenoff should personally pay any legal expenses ofthe Co-op for this proceeding, any moving expenses of Ms. Fradette, and their costs on a solicitor-client basis; alternately, they seek anaward of solicitor-client costs payable by the Co-op. [2] Costs are normally awarded to the successful party. Given the outcome of this proceeding, I award one set ofcosts to the Co-op, Ms. Slowski, and Ms. Stepenoff jointly, and a second set of costs to Ms. Fradette, payable by the applicants. ConclUsion [3] Ms.

Fradette’s application to intervene in this proceeding is granted. Mr. and Ms. Silzer’s application for reliefunder the oppression remedy is dismissed, with costs to the Co-op, Ms. Slowski and Ms. Stepenoff jointly, and costs to Ms. Fradette. J. P.T. BERGBUSCH