Westboine Park Housing Date:, 2011 MBCA 9

Citation: Westboine Park Housing Date: 20110201 Co-op Ltd. v. Wapemoose, 2011 MBCA 9 Docket: AI 10-30-07468 IN THE COURT OF APPEAL OF MANITOBA BETWEEN : WESTBOINE PARK HOUSING ) P. Wapemoose CO-OP LTD. ) on his own behalf ) (Cooperative) Respondent ) S. A. Zinchuk ) for the Respondent ) - and - ) S. D.

Boyd ) for the Residential ) Tenancies Branch PETER WAPEMOOSE ) ) Chambers motion heard: (Member) Applicant ) January 6, 2011 ) ) Decision pronounced: ) February 1, 2011 MONNIN J.A. 1 The applicant seeks leave to appeal the order of possession granted by a residential tenancies officer at the Residential Tenancies Branch (the Branch) to Westboine Park Housing Co-op Ltd. (the cooperative), for the housing unit the applicant continues to occupy after the cooperative terminated his membership. 2 Leave to appeal may only be granted on a question of law or jurisdiction.

See s. 175(2) of The Residential Tenancies Act , C.C.S.M., c. R119 (the Act ). In addition, leave will only be granted where a question of law or jurisdiction has a reasonable prospect of success and the question is one of public interest that warrants the attention of this court. See: J.J. Rodrigues Realty v. Sandy , 2010 MBCA 27 (in chambers). 3 In dealing with matters arising from membership in cooperatives, the jurisdiction of the Branch is very limited. 4 Section 3(1) of the Act provides as follows: Non-application 3(1) This Act does not apply to . . . . . (

c) except as provided in

Part 12 of The Cooperatives Act , living accommodation provided by a housing cooperative, as defined in

section 1 of that Act , to its members who occupy the living accommodation; …. 5 Therefore the Act does not apply to housing cooperatives, except as provided in

Part 12 of The Cooperatives Act , C.C.S.M., c. C223. The only

section in

Part 12 which refers to the Act is s. 282(2) which states: Order of possession

282(2) In the circumstances described in subsection (1), the provisions of The Residential Tenancies Act providing for an order of possession against a tenant who does not go out of possession of residential premises after his or her tenancy expires or is terminated apply, with necessary changes, to the member and to the cooperative. 6 Section 282(1) provides: Member failing to give up residential unit 282(1) This

section applies when a housing cooperative member’s right to possession and occupancy of residential premises of the cooperative has been terminated because of

section 279 or 281 and he or she does not go out of possession of the premises. 7 This court has previously dealt with applications for leave to appeal orders from the Branch where the landlord was a cooperative and those decisions have confirmed the limited jurisdiction of the Branch. In Aspen Woods Co-op v. Stevens-Premack , 2001 MBCA 13 , 153 Man.R. (2d) 111 Lyon J.A. wrote (at paras. 9-13): The applicant argues that para. 9 of s. 154(1) can only be invoked by the Co-op “if the tenancy agreement has been terminated in accordance with this Act ”; i.e., the Residential Tenancies Act . I disagree.

The purpose of s. 282 is simply to provide the housing cooperative with a means of enforcing its tribunal’s decision to terminate a member and her occupancy rights. The

section clearly does not provide the terminated member with a further avenue under the Residential Tenancies Act to appeal a decision to terminate her membership in the Co-op.

Section 282 is solely an enforcement provision for the cooperative’s benefit with limited application “with such modifications as the circumstances require, to the member and to the cooperative.” ….. Therefore, a decision of an appeal tribunal in respect of an appeal concerning the termination of a person’s membership in a housing cooperative is not subject to any further appeal. Furthermore, by s. 281 the member’s right to possession or occupancy to housing coop premises is terminated once membership in the cooperative is terminated.

To recapitulate, I am of the opinion that the intention of the legislature when it enacted s. 3(1) of the Residential Tenancies Act was clear that Act did not apply to the Cooperatives Act except for the limited purpose of procuring an order of possession and the restricted manner of appealing therefrom. It seems evident that the legislature intended these two statutes to operate independently of one another; the Cooperatives Act applying to cooperative housing matters, and the Residential Tenancies Act applying to general residential tenancy matters outside of those contemplated in the Cooperatives Act .

The only interplay between the two Acts , in my opinion, is limited strictly to the area of enforcement of the termination of occupancy rights. The legislature has essentially provided that where the occupancy rights of an occupant have been properly terminated pursuant to the Cooperatives Act and the occupant refuses to leave, as in the instant case, the cooperative can seek enforcement by obtaining an order of possession pursuant to the provisions of the Residential Tenancies Act . Further appeals of that order of possession, may also be made pursuant to the Residential Tenancies Act .

However, such appeals, at least in terms of a Cooperatives Act matter, will not provide the terminated member with a new avenue to appeal again the order terminating her membership/occupancy rights under the cooperative. Such an

interpretation as discussed would be contrary to the very clear provisions of s. 280(5) of the Cooperatives Act . 8 In Willow Park Housing Co-op Ltd. v. Walker , 2010 MBCA 106 , Hamilton J.A. before endorsing the decision in Aspen stated (at para. 6): However, at the hearing I had questions as to whether there was an arguable question of law or jurisdiction arising from the limited jurisdiction exercised by the residential tenancies officer.

Because the parties had not addressed this specific issue, I reserved my decision to allow each of them the opportunity to provide a brief written submission on the point, which they all did. 9 She then went on to dismiss the application for leave as follows (at para. 8):

While I understand that Mr. Walker feels aggrieved by the process which has occurred, it is the process mandated under TheCooperatives Act. I agree with counsel for the cooperative and counsel for the Director, that no arguable question of law or jurisdictionwith a reasonable chance of success is raised by how the residential tenancies officer explained the jurisdiction of the Branch in thecircumstances or in how she applied the applicable statutory provisions. A review of the pertinent provisions of

Part 12 (HousingCooperatives) of The Cooperatives Act and the RTA, in the context of the process that was followed here, makes this clear. 10 And (at para. 21): Therefore, given the provisions of The Cooperatives Act and the RTA, the jurisdiction of the Director (or delegate, as in this case) was alimited one and it was not, as argued by Mr.

Walker, to review or reconsider the decision of the directors of the cooperative to terminatethe applicants’ membership or the decision of the appeal tribunal to uphold the termination. 11 In support of his application, the applicant argues that his s. 7 rights to life, liberty and security of the person under theCanadian Charter of Rights and Freedoms (the Charter) have been encroached. He also argues that he has been deprived offundamental rights because of the restricted authority that the Branch can exercise in considering a request for an order of possessionbeing made by a cooperative.

Finally, he argues that on the basis of the decision in Chase v. Charles-Cathedral Housing Co-op Ltd.,2008 MBQB 261, 233 Man.R. (2d) 170, the Branch should have denied the respondent’s request for an order of possession. 12 Chase was a case of judicial review brought under the provisions of The Cooperatives Act challenging the decision of theappeal panel following a board resolution to terminate a membership. The challenge was upheld on the basis that the appeal panel hadfailed to provide sufficient reasons for its decision.

This decision, in my view simply confirms that the applicant could have brought anapplication for judicial review of the appeal tribunal’s upholding of the board resolution terminating his membership which is aprocedure that he did not pursue. The decision does not, however, permit the Branch to sit on appeal from a decision made under TheCooperatives Act which is what the applicant is arguing the Branch should have done. 13 I also reject the applicant’s argument that his rights under s. 7 of the Charter have been infringed. There is no evidentiarybasis to consider this as a valid argument.

One cannot simply state that his or her Charter rights have been infringed and turn that baldassertion into a valid point of law. On this issue, it is apt for me to quote from Helper J.A.’s reasons in Derksen Mechanical ServicesLtd. et al. v. Labour Board (Man.) et al. (1991), (MB CA), 75 Man.R. (2d) 268 (C.A.), where she relied on a passagefrom Henry J. in Arlington Crane Service Ltd. v. Ontario (Minister of Labour) (1988), (ON SC), 56 D.L.R. (4th) 209at 235 (Ont.

H.C.J.) (at para. 14): In order to make a successful attack on legislation or government action as infringing the Charter, the applicants must show both factsand law to support a claim to infringement. They must establish that their rights and freedoms guaranteed by the Charter have beeninfringed by the circumstances of this case. It is not sufficient to rely on abstract or theoretical infringements or to rely on allegedinfringements on the rights or freedoms of others. In short, the alleged infringements must arise on the evidence before the court ought toaddress the constitutional issue. [Sic].

In the absence of such an evidentiary basis the court ought not to determine constitutional rightsin the abstract. 14 In the final analysis, the applicant is taking issue with the restrictive jurisdiction that the Branch has in dealing with mattersthat derive from The Cooperatives Act. This court in the decisions cited above has already decided that such a jurisdiction is valid. Confirming it a third time will add nothing to what has already been decided.

If one is aggrieved with a decision of a cooperative madeunder The Cooperatives Act, the remedy is not to challenge the decision of the Branch made under the Act, but to seek judicial review ofthe cooperative’s decision as was done in Chase. 15 The issues on which the applicant seeks leave to appeal have no reasonable prospect of success and the questions are not oneof public interest that warrants the attention of this court. 16 The application is denied. J.A.