Chisolm Place Housing Co-operative Inc. v. Hickox et al., 2013 ONSC 2215

CITATION: Chisolm Place Housing Co-operative Inc. v. Hickox et al., 2013 ONSC 2215 COURT FILE NO.: 8785/12 DATE: 2013/04/22 SUPERIOR COURT OF JUSTICE - ONTARIO BETWEEN: CHISOLM PLACE HOUSING CO-OPERATIVE INC. (Applicant) - and – DANIEL HICKOX and KATHERINE LAVALLEE (Respondents) BEFORE: JUSTICE I. F. LEACH COUNSEL: Ian S. Wright, for the Applicant Respondents self-representing HEARD: April 12, 2013 E N D O R S E M E N T 1 .

Chisolm Place Housing Co-operative Inc., (a housing co-operative incorporated under the Co-operative Corporations Act , R.S.O. 1990, c.C-35, and hereinafter referred to as “the Co-op”), brings this application for a declaration that the membership and occupancy rights of the respondents have been terminated. 2 . It also seeks a writ of possession in relation to the residential unit of the Co-op still occupied by the respondents and their children. 3 . The respondents, Mr Hickox and Ms Lavallee, oppose the application.

They say the steps taken by the Co-op on the road to this application deviated in numerous ways from principles of natural justice, and failed to ensure procedural fairness. They also say there was in fact no reasonable basis for the Co-op’s purported termination of their membership and occupancy rights. Background - Evidence 4 . The Co-op has brought its application pursuant to s.171.13 of the Co-operative Corporations Act , supra , and other provisions of that legislation mandate its determination by a procedure markedly less formal than that normally applied to other applications and actions. 5 .

In particular, s.171.15(1) requires that such applications be heard and determined in a

summary way, and s.171.20 permits the court to admit “any oral testimony or any document or thing as evidence” at such a hearing. Moreover, evidence “need not be given under oath or affirmation as evidence in a court as long as it is relevant to the subject-matter of the proceeding”.

6 . However, both the Co-op and the respondents approached this matter by tendering document briefs, and providing sworn evidence during a process that closely resembled a one day trial. 7 . In addition to documentary evidence filed by the parties, I received testimony from each of the respondents and from three witnesses called by the Co-op: Shannon Page and Elizabeth Norris, (also members and residents of the Co-op), and Connie Schlueter, (the co-ordinator employed by the Co-op to assist with its day to day administration). 8 .

The respondents, (and to a much lesser extent the applicant), supplemented that sworn testimony informally with further information provided through oral submissions and unsworn written statements. 9 . I received and considered such information pursuant to the mandated relaxation of formal procedures and rules of evidence, noted above. In terms of weight, however, evidence that was sworn and direct, (as opposed to hearsay), inherently was more compelling, tested and reliable. 10 .

By way of general background: • Ms Schlueter confirmed that the Co-op is a body incorporated pursuant to the Co-operative Corporations Act , supra . It currently has approximately 100 members, who reside in 65 residential units located at 1290 Sandford Street, here in the city of London. • No adults are permitted to occupy any of the units unless and until they are admitted to membership in the Co-op, (which carries an expectation of participation in the activities and administration of the Co-op), and sign a standard form “Occupancy Agreement”.

That document includes an express agreement to abide by all Articles, By-laws, Rules and Regulations of the Co-op “as they presently exist and as they may be duly amended”. It also includes an express acknowledgment that the signatory has received and reviewed a copy of the Co-op’s By-laws, Rules and Regulations. • By-law #2 of the Co-op includes the following provisions within its

Article 5, dealing with “Use and Behaviour”: o 5.02 Nuisance Members shall not behave in any fashion that may unreasonably interfere with the enjoyment of other members, nor shall they commit or permit any nuisance or any noise or disturbance that would unduly disturb other members, nor shall they commit or suffer any illegal acts to be committed within the unit or on the common elements. o 5.03 Rules and Regulations The Rules and Regulations of the Co-op shall be the Rules and Regulations set out in

Schedule “B” attached hereto and may be amended only by the same procedure by which this By-law may be amended. They shall be observed by all members and the Co-op. •

Schedule “B” to the Co-op’s By-law #2 includes, via “Amendment No. 2”, the following “Rules and Regulations”: o SAFETY 1. The members shall at all times exercise care for the safety of others. … o VANDALISM Any act of vandalism, theft or malicious mischief perpetrated by a member or any resident of his/her household or any of his/her guests, against the Co-op or other residents, shall be grounds for immediate TERMINATION of the member’s Occupancy Agreement, as well as grounds for prosecution to the fullest extent of the law. •

Article 10 of the Co-op’s “By-law #2” also contains provisions, (some of which are addressed in more detail below), dealing with “Termination of Occupancy by Co-op”. These specify situations in which the Co-op’s board “may terminate a member’s right to occupy a Unit”, and the “Procedure for Terminating Occupancy”. The latter provisions detail procedures to be followed by the Board.

Article 10 also includes detailed provisions outlining and governing a member’s “Right of Appeal” from a board decision, and the “Legal Proceedings” that the Co-op may pursue to enforce any Board decision and/or associated appeal that result in the Co-op telling a member that he or she must vacate. • Although a particular residential unit may be occupied by a family, (and the total monetary payments required by the Co-op in relation to each unit are determined by the combined income of all family members), the established practice of the Co-op is to treat each adult in the family as an individual member of the Co-op.

Reflecting and confirming that approach, each such adult is required to sign a separate and individual Occupancy Agreement. Children nevertheless are permitted to occupy a residential unit without being members of the Co-op, so long as they reside with a parent who is a member. • Each of the respondents was admitted to membership in the Co-op on or about February 3, 2012. Each signed a separate standard form Occupancy Agreement the same day.

They were assigned Unit 47, and began living there with their children on February 29, 2012. • The respondents say they then participated as required in the affairs of the Co-op, (e.g., with Mr Hickox becoming active in the Co-op’s landscaping committee), and this was not disputed by the Co-op. • The respondents also say that, prior to August 22, 2012, they never received any indication whatsoever from the Co-op suggesting that either respondent may have done anything wrong, or that either had been guilty of any misconduct. This too was not disputed by the Co-op. 11 .

In support of its present application, the Co-op formally relied, in its written notice material and in the hearing before me, on nothing but events that transpired on August 22, 2012. On that date, there was a confrontation between Mr Hickox and Ms Page, another

member of the Co-op who lives with her son in Unit 49 of the complex. (Unit 49 is adjacent to the unit occupied by the respondents and their children.) 12 . The respondents do not dispute that there was such a confrontation. 13 . However, they say it was provoked by the conduct of Ms Page, and that the details of the confrontation and the alleged misconduct of Mr Hickox that day have been exaggerated. 14 .

While the focus of the current application must be the events of August 22, 2012, (as that is the stated basis on which the applicant currently seeks relief from the court), an understanding of the respondents’ position, and their objections relating to process and the existence of a reasonable basis for termination of their rights, requires at least some limited reference to events leading up to August 22, 2012. 15 . In that regard, the respondents candidly acknowledge that there had been increasing tension between them and Ms Page prior to that day. 16 .

In particular, because Ms Lavallee has allergies, the respondents had complained that Ms Page was letting her pet cat wander freely, and disputes relating to the cat had led to a number of increasingly unpleasant exchanges between Mr Hickox and Ms Page. 17 . According to the respondents, this included repeated name-calling by Ms Page and threats to have them evicted, as she claimed to “know the rules”, was a paralegal, and also was the head of the Co-op’s “Members Relations Committee”. 18 .

According to Ms Page, Mr Hickox was the one who engaged in inappropriate comments, gestures and behaviour, (including comments made directly to her young son). 19 . On August 21, 2012, the temporary disappearance of Ms Page’s cat, (subsequently discovered to have been impounded by Animal Control), prompted further unpleasantness. 20 . According to the respondents, Ms Page aggressively and profanely made direct and public accusations that Mr Hickox was responsible for her cat’s disappearance, alleging in particular that he had called “the pound”.

The respondents denied the accusations at the time, and still deny them. 21 . According to Ms Page, (who acknowledged asking Mr Hickox what he had “done with” her cat), Mr Hickox mocked her efforts to locate her pet, engaged in profanity and then “mooned” her; an accusation which the respondents also vehemently deny. Ms Page unquestionably then called the police, who attended at the complex that evening and spoke to all concerned, but declined to lay charges. 22 .

In the course of their interaction with Ms Page on August 21, 2012, it seems the police also indicated or suggested in some way that the local Children’s Aid Society was investigating a complaint made in relation to Mr Hickox. If so, this was unfortunate for many reasons, not least of which was the inaccuracy of any comment to that effect.

In particular, evidence tendered in the hearing before me, (including correspondence from the Children’s Aid Society of London and Middlesex), confirmed that the CAS was not investigating Mr Hickox, and that it was involved with the respondents “for support purposes only”, on a “voluntary basis”, in connection with ongoing matrimonial litigation between the respondents and their respective former partners. 23 . The comment apparently made by the police to Ms Page, (or her understanding of it), nevertheless unfortunately did much to set the stage for events the following day. 24 .

Soon after 9am on August 22, 2012, Ms Page was standing outside her unit, (shortly after retrieving her cat from Animal Control), and Mr Hickox was in his bedroom. The two then engaged in another unpleasant exchange. In particular: a. According to Mr Hickox, Ms Page yelled up to his bedroom window while he was still in bed, saying “I got my cat back you fucking goof!” When he came to the window and told her to “Grow up”, she responded by repeating information she claimed to have received from the police before then calling Mr Hickox a “diddler” and “pedophile” in a very loud voice.

He says she also then repeated her threat to have the respondents evicted, noting that she already had six members “lined up” against the respondents. b. According to Ms Page, Mr Hickox came to his window and began taunting her as she made noises calling her cat. She says he called her names, and taunted her again about her unsuccessful efforts to have the police lay charges the day before. She admits that she was upset, and that she then publicly indicated the information allegedly received from the police before calling Mr Hickox a “diddler”, (although she denied using the term “pedophile” as well). 25 .

Following this exchange, Ms Page proceeded immediately to the office of Ms Schlueter, to discuss the problems being experienced between herself “and Unit 47”. 26 . Unfortunately, after getting dressed, Mr Hickox then proceeded independently to the same location with the intention of filing a grievance with the Co-op about the conduct of Ms Page. (The grievance forms were located immediately outside Ms Schlueter’s office.) 27 . I was presented with varying accounts of what then happened in Ms Schlueter’s office on August 22, 2012. In particular: a.

According to Ms Page, she was in the office discussing her concerns with Ms Schlueter when Mr Hickox came “charging in”, enraged, angry and yelling. Ms Schlueter repeatedly asked him to leave but he refused. When Ms Page attempted to close the office door with Mr Hickox on the outside, he used his superior physical strength to push it back open, (pushing Ms Page back in the process). Mr Hickox then began yelling at Ms Page and she at him, with their faces just inches apart.

Ms Page was fearful as Mr Hickox was bigger and stronger, his hands were raised while he yelled at her, and she felt he was going to attack her. While Mr Hickox and Ms Page

proceeded to yell at each other, Ms Schlueter placed a “911 call”, which angered him further. Mr Hickox then spit in the face of Ms Page before withdrawing slightly into the entrance of a nearby meeting room, at Ms Schlueter’s request, to let Ms Page exit and leave for her unit. b. According to Mr Hickox, as he approached the office to collect a grievance form, he heard Ms Page crying and expressing distress allegedly caused by his conduct, and this upset him further because he felt she was the one who had been the “instigator” and “aggressor” during their exchange that morning.

He therefore appeared at the door of the office, intending to challenge the account being given by Ms Page. He admits that Ms Schlueter asked him repeatedly to leave and come back later, but he decided to stay and confront Ms Page “so that Connie [Ms Schlueter] could see her [Ms Page’s] behavior and how she interacts with [him]”. He says he did not force the office door open, but simply blocked it from hitting him when Ms Page tried to slam it into him. He admits to then yelling back and forth with Ms Page, but denied being physically aggressive or raising his hands.

He says Ms Page was the one constantly “in his face”. He denied spitting on her, and claimed that he had instead “blown a puff of air” in the face of Ms Page, in an effort to have her back away from him. He admits that he became more angry when Ms Schlueter told the 911 operator that he had spit on Ms Page because it “never happened”. He also says that Ms Schlueter would not have seen such a thing in any event because of everyone’s relative locations and positions at that point. c.

In all material respects, Ms Schlueter essentially corroborated the evidence of Ms Page, as far as events in the office that morning were concerned. In particular, she confirmed that she repeatedly asked Mr Hickox to leave and come back later, but he repeatedly retired only a brief distance into the nearby meeting room before repeatedly returning to continue the argument. Ms Schlueter also confirmed that, at one point, Mr Hickox also forced his way into the office by pushing on the door and shoving Ms Page back.

Ms Schlueter said that he had then stood “over” Ms Page in a threatening manner, with his arms and hands raised, (although Ms Page also had used her hands at one point in the argument), before Ms Schlueter then very clearly saw him spit in the face of Ms Page. Ms Schlueter testified that she feared for the safety of Ms Page, (because she thought Mr Hickox would assault her), and for her own safety, (not because Mr Hickox would target Ms Schlueter, but because he was not listening to her requests and she doubted she could physically intervene in the altercation without being hurt).

That was why she had placed “the 911 call”. 28 . Accounts also varied as to what happened immediately after the confrontation that took place within the office. In that regard: a. According to Ms Page, when she left the office for her unit, Mr Hickox followed immediately, “tagging right behind” her while yelling and screaming at her. She was in tears, and just wanted to get back to her unit as soon as possible. b. According to Mr Hickox, he had no intention of following Ms Page.

However, after pausing for a time to tell Ms Schlueter that he too wanted to talk to the police when they arrived, and that they could find him in his unit, he too left the office for home – unfortunately but necessarily heading in the same direction as that taken by Ms Page. He says that unfortunate situation was aggravated by Ms Page “lingering” outside the office before she then kept walking slowly in front of him, “waiting for [him] to catch up” so she could continue arguing with him. He admits to calling her a “bitch”, and yelling to emphasize that he had never spat on her as alleged. c.

Ms Norris happened to arrive at the complex parking lot shortly before Ms Page and Mr Hickox left the office. From within the building, she heard a male voice yelling “I didn’t fucking touch you!” She then saw Ms Page exit the building and walk away, as the same male voice yelled “Bitch!” Shortly after Ms Page began walking quickly away from the building, Ms Norris saw Mr Hickox follow her, just as quickly, in an “intimidating way”, yelling and “flailing his arms” around his shoulders. He was clearly upset.

Ms Norris feared for the safety of Ms Page and, after briefly trying to engage Ms Page in conversation to ask whether she was alright, Ms Norris immediately went into the office to suggest that Ms Schlueter call the police – only to learn from Ms Schlueter that such a call already had been made. d. According to Ms Schlueter, after Ms Page and Mr Hickox left her office, she could see only Mr Hickox, waiving his hands in the air and shouting. Any view she might have had of Ms Page was obstructed. 29 .

Although Ms Page initially seems to have gone to her unit, she later returned to the office area, where she waited with Ms Norris in the meeting room until the police arrived. 30 . Ms Norris and Ms Schlueter acknowledged that Ms Lavallee came to the office area during that same time. Although Ms Norris felt that Ms Lavallee stared at Ms Page in an “intimidating way” through the glass door or window of the meeting room, there is no suggestion that Ms Lavallee came into the meeting room or said anything whatsoever to Ms Page. 31 .

Ms Schlueter confirmed, instead, that Ms Lavallee had come to the office for the stated purpose of explaining to Ms Schlueter that Ms Page had been calling Mr Hickox names that morning, which was why he had been upset. Ms Schlueter then advised Ms Lavallee that she considered the events of that morning to be very serious, and that she would have to report them to the Co-op’s board of directors. 32 . When the police arrived at the complex on the afternoon of August 22, 2012, they decided not to lay charges after confirming that Ms Page had shouted insults at Mr Hickox prior to the confrontation in the office.

General Process 33 .

I will return below to some of the particular procedures adopted thereafter by the Co-op to address the events of Wednesday, August 22, 2012, but the overall chronology in that regard was as follows: • On August 22, 2012 , the Co-op served the respondents with a written notice, signed by the Co-op’s president, indicating that the Co- op Board would be meeting on Tuesday, August 28, 2012, to consider terminating the respondents’ membership and occupancy rights as of August 29, 2012. (It was mentioned that the Board might set a later date.) The respondents were asked to attend the Board’s August

28 th meeting at 6:40pm. The grounds for termination, specified in the notice, referred only to Mr Hickox and indicated that he was in violation of

Article 5.02 of the Co-op’s By-law # 2, (obliging members not to engage in “Nuisance” behaviour), and

Article 5.03 of the same by-law, (obliging members to comply with the Co-op’s “Rules and Regulations”). The specified “Details” relied upon by the Board, in support of the alleged grounds for termination, were focused on the alleged conduct of Mr Hickox within the Co-op office on August 22, 2012. Attached to the served notice were copied extracts of the Co-op’s By-law #2, including portions of

Article 5, (dealing with “Use and Behaviour”), portions of the Co-op’s “Rules and Regulations”, (dealing with “Safety”, “Noise”, “Sanitation” and “Vandalism”), and

Article 10, (dealing with “Termination of Occupancy by Co-op”).

Also attached were copied portions of the Co- operative Corporations Act , supra , dealing with termination of membership and occupancy; i.e., ss.171.7 to 171.13 (in part) of that legislation. • At 3:47pm on August 28, 2012 , prior to the board meeting scheduled for later that evening, Ms Norris sent an email, providing the Board with further information about the events of August 22, 2012, (setting out what Ms Norris claimed to have witnessed, as outlined above). • On the evening of August 28, 2012 , the respondents failed to arrive at the Board meeting in time to be heard.

They were returning to London that day from a pre-planned vacation east of Toronto, (the dates of which had been verbally communicated to the Co-op via Ms Schlueter), and were delayed by traffic while they were without any operational cell phones. By the time they reached the Co-op at approximately 7pm, (approximately 20 minutes after the time at which the respondents were asked to attend), the Board members already had made a substantive decision, in the respondents’ absence, to terminate the respondents’ membership and occupancy rights.

As Board members already had left by the time the respondents’ arrived, Ms Schlueter indicated, in response to requests from the respondents, that she would try to call them back. However, a quorum of directors was no longer available. Ms Schlueter then presented the respondents with already completed eviction paperwork. • On August 29, 2012 , the Co-op served the respondents with a copy of the Board’s written decision, confirming that the membership and occupancy rights of both respondents were being terminated effective September 14, 2012.

The stated reasons for the decision were those outlined in the notice served on August 22, 2013; i.e., that the behavior of Mr Hickox had violated Articles 5.02 and 5.03 of the Co-op’s by-law, (dealing respectively with “Nuisance” and “Rules and Regulations”). The stated details in that regard once again were limited to the alleged conduct of Mr Hickox in the Co-op office on the morning of August 22, 2012.

However, the Board’s decision also went on to note that it had “decided to proceed with immediate eviction given the escalation in aggressive behavior which represents a safety concern and for his refusal to cease and desist”. • On August 31, 2012 , the respondents delivered a written letter to the Co-op, indicating their desire to appeal the Board’s decision.

Outlining “some of the reasons” for their intended appeal, as a “small sampling” of why they were requesting Board reconsideration before the matter went to the General Membership of the Co-op, they included questions as to why Ms Lavallee’s rights also were being terminated when she was not alleged to have done anything wrong, referred to the short notice they had received in relation to the Board’s earlier meeting, noted their desire to offer information about the provocation by Ms Page that morning, and questioned the accuracy of information apparently relied upon by the Board. • On August 31, 2012 , the Board indicated its willingness to meet with the respondents on the evening of September 13, 2012.

Apart from a short written memo to that effect, (and similar short memos proposing a slight variation in the proposed start time for the meeting), no further written notice regarding contemplated termination of the respondents’ membership and occupancy rights was sent; e.g., amending or supplementing the original formal notice served on August 22, 2012. Nor was there any disclosure of the further information the Board had received from Ms Norris. • On September 13, 2012 , the respondents did meet with the Board, asking the Board to reconsider its decision.

According to the respondents, the Board “already had made up its mind”.

Moreover, according to further unchallenged evidence from the respondents: o When the respondents pressed for reasons as to why Ms Lavallee’s rights also were being terminated, the Board indicated for the first time that it was relying on the “Vandalism” provisions of the Co-op’s by-law, (although it then declined to provide a requested explanation as to how or why that provision applied in the circumstances). o One of the Board members, (Ms Sampaio), said reliance was being placed not only on the behavior of Mr Hickox on August 22, 2012, but also on his earlier conduct, including the manner in which he had acted as a member of the Co-op’s landscaping committee. • On September 16, 2012 , the Board served the respondents with a copy of its written decision to terminate both the respondents’ membership rights as of September 30, 2012.

The written decision is quite similar to the one served on August 29, 2012, except that it outlines the reasons for the second Board meeting, expands its reasons to include a reference to the “Vandalism” provisions of the Co- op’s policy, and concludes by saying “The Board has upheld their decision to proceed with eviction given the escalation in aggressive behavior which represents a safety concern and for his refusal to cease and desist.” The “details” set out in support of the decision once again are limited to the events alleged to have taken place within the Co-op office on August 22, 2012. • On September 22, 2012 , the respondents delivered a written request for an appeal of the Board’s decision to the General Membership.

The request outlined the respondents’ reasons for appealing, which included numerous complaints about unfair process, (including inadequacy of notice and the belated failure to specify any grounds of termination relied upon in relation to Ms Lavallee), and the respondents’ different and more expansive version of events of August 22, 2012, (including reference to the provocation by Ms Page).

The respondents also specifically asked that, instead of their rights being terminated, the matter instead be addressed by way of their relocation within the Co-op complex so as to reduce interaction and conflict with Ms Page. • On October 5, 2012 , the Co-op circulated notice of a General Membership meeting on October 17, 2012, to consider the respondents’ appeal. With that notice, the Co-op also circulated copies the respondents’ written submission, (as required by the legislation), copies of a report from the Board explaining its two decisions, and copies of a “Co-ordinator’s Report”.

In that regard: o The Board’s report included an explanation that it had served its original notice six days after the August 22 nd incident “because the

Board felt there were issues of safety that needed to be addressed immediately”. It then had made its original decision, and upheld thatdecision, because “all members have the right to expect that their safety will not be threatened when they are in the community centre”. The Board outlined the provisions of the Co-op bylaw upon which it had relied.

In doing so, it confirmed that it had raised reliance onthe “vandalism” provision of the by-law during the meeting on September 13, 2012, when the respondents asked why Ms Lavallee’srights were being terminated as well. o The Co-ordinator’s report prepared by Ms Schlueter expanded considerably on the “details” set out in the earlier notice and decisionssupplied to the respondents, and also included reference to events that took place after Ms Page and Mr Hickox left her office on August22, 2012.

In doing so, she briefly mentioned that “Another member later reported that he was shouting and cursing at [Ms Page]outside”. No further details were provided. • On October 17, 2012, there was a meeting of the General Membership to consider the respondents’ appeal. According to theunchallenged evidence of the respondents, discussion at the meeting, prior to voting by the General Membership, went considerablybeyond the “details” said to have been relied upon by the Board in making its decisions.

In particular, the respondents were presented forthe first time with the additional evidence of Ms Norris, (who read out her email to the Board), Ms Page spoke about the respondents’conduct in relation to her cat, and the President made reference to unspecified additional grievances relating to Mr Hickox that there wasinsufficient time to explore at the meeting. The chair also prevented the respondents from commenting on Ms Page’s allegations thatMr Hickox was a “diddler” or “paedophile”, (although that provocation, relied upon by the respondents, had been raised in their writtenmaterial).

Although some members had asked whether other solutions might be possible, the General Membership then was asked tocast written ballots simply indicating whether members agreed or disagreed with the Board’s decision to terminate the respondents’membership and occupancy rights. Problems with the balloting then followed. (At a minimum, the number of ballots cast did notcorrespond with the number of ballots distributed.

The respondents contend that it also was not a free and open ballot, as thosemonitoring the process could see how members were voting.) The results of a further ballot indicated that a majority had voted in favourof agreeing with the Board’s decision. • On October 19, 2012, the respondents requested a recount of the final ballot.

As this had to be carried out in the presence of theGeneral Membership, a further meeting of all members was scheduled for November 1, 2012. • On November 1, 2012, the requested recount confirmed the numerical outcome of the first count, and that a majority of those votinghad agreed with the Board’s decision to terminate the respondents’ rights of membership and occupancy. • On November 2, 2012, the Co-op served the respondents with a notice requiring them to vacate Unit 47 on or before November 15,2012. 34.

The respondents did not vacate their unit, leading to the present application by the Co-op being initiated on December 5,2012. Standard of Review 35. The Co-op brings its application before me pursuant to s.171.13 of the Co-operative Corporations Act, supra, which reads inpart as follows: 171.13(1) After a person’s membership and occupancy rights are terminated …, the non-profit housing co-operative may apply to ajudge of the Superior Court of Justice for an order, (

a) declaring that the person’s membership and occupancy rights are terminated …; and (

b) directing that a writ of possession be issued. … 171.13(12) After a hearing, the judge shall determine the applicant’s claim and may make an order declaring the membership andoccupancy rights terminated or … directing that a writ of possession issue … , or any of them, and in any such order may impose suchterms and conditions as the judge considers appropriate. 36. In addressing such applications, numerous authorities have emphasized that the unique nature of a co-operative warrants adeferential standard of review in relation to decisions made by a Co-op’s board and/or membership. 37.

Frequently cited in that regard are the following comments of Justice Molloy in Tamil Co-operative Homes Inc. v.Arulappah, [1996] O.J. No. 768 (S.C.J.), at paragraphs 59-60: The relationship between the Co-operative and its members is fundamentally different from the usual landlord and tenant relationship. The intent of the [Co-operative Corporations Act], as noted in the Hansard excerpt referred to above, was to preserve the “distinctivecharacter” of housing co-operatives while at the same time ensuring that members receive protection “similar” to those given tenantsunder the [Landlord and Tenant Act].

The Board of Directors of a Co-operative is a democratically elected body of which themember/tenant is a part and within which he or she has a voice. Members of cooperatives have many protections and privileges havethat regular tenants do not. There is a hearing process before the Board (with a right of appeal) before a member’s rights can beterminated. There is also a democratic process for removal of a Board of Directors in whom the membership has no confidence. Theseprotections must be taken into account by the Court in considering cases involving co-operatives.

The philosophy underlying co-operatives would be completely undermined if the decisions of cooperatives were treated in the same manner by the court as decisions ofprivate landlords. Some degree of deference to the democratically elected Board is required. It is not appropriate, in my view, for thecourt to substitute its own opinion for that of the co-operative or to second-guess what the co-operative has done. That is not to say, however, that co-operatives have untrammelled powers over their members.

Under the CCA the Court has asupervisory role to ensure that members are treated fairly and in accordance with the legislation and internal by-laws. Thus, as wasrecognized in [McBride v. Comfort Living Housing Co-operative Inc. (1982), (ON CA), 7 O.R. (3d) 394 (C.A.), at

p.402], the court can and should intervene if a member has not been treated “with procedural fairness and in accordance with the rules ofnatural justice”. I believe it is also proper to apply a reasonableness standard to reviewing decisions of the Board of Directors was heldby Ewaschuk J. in [Mimico Co-operative Home Inc. v. Ward, unreported, July 21, 1995)] and by Epstein J. in [Woborn Village Co-operative Homes Inc. v. Kannundurai (1995), 57 A.C.W.S. (3d) 347 (Ont.Gen.Div.)].

Generally speaking then, the Court will notintervene if a member has been dealt with in accordance with principles of natural justice and procedural fairness and if the Board hada reasonable basis for its decision in the circumstances. This, in my view, is the standard of review. [Emphasis added.] 38. Although Justice Molloy’s decision initially was reversed by the Divisional Court in Tamil Co-operative Homes v.Arulappah, (ON SC), [1999] O.J. No. 1460 (Div.Ct.), that reversal was in turn set aside by the Court of Appeal inTamil Co-operative Homes Inc. v. Arulappah, [2000] O.J.

No. 33720 (C.A.), who held that the Divisional Court should have dismissedthe appeal from Justice Molloy’s decision as moot. 39. In the course of its ruling, the Court of Appeal rejected arguments that the appellate courts in that litigation should addressand resolve issues concerning the applicable standard of review in order to “promote judicial economy”; i.e., to resolve issues concerningthe applicable standard of review in future cases.

In particular, the Court of Appeal had this to say at paragraph 34 of its decision: The Divisional Court’s resolution of the standard of review issues is similarly of limited value in resolving future cases. Section171.13(12) does not articulate a standard of review. The determination of the operative standard of review is as much an exercise injudicial self-discipline as it is an exercise in statutory

interpretation. As Campbell J. observed in Ryegate (Tecumseh) Co-operative Homes Inc. v. Stallard, [ (ON SCDC), 194 D.L.R. (4th) 363 (Ont.Div.Ct.)], the standard of review will varydepending on the issues raised[1]. It is impossible, in my view, to hold that s.171.13(12) of the Act creates a single standard of reviewapplicable to each and every challenge made to a Board of Directors’ decision to terminate membership and occupancy rights. 40. However, as subsequently noted by Ducharme J., (as he then was), in Neill- Co-operative College Inc. v.

Swick, [2005] O.J.No. 4940 (S.C.J.), at paragraph 5, notwithstanding conflicting Ontario caselaw concerning the standard of review or test to be appliedunder s.171.13, the “vast majority of judges have continued to take a deferential approach” in relation to such matters. In particular,reviewing courts generally do not consider the correctness of a Co-op board’s decision, but whether or not the board acted within thescope of its authority, whether its decision was reasonable, and whether it treated the respondent member reasonably. 41.

The case before me is one dealing with aspects of co-operative management other than the making of by-laws. (In otherwords, it is a case involving a dispute as to whether by-laws and rules of the Co-op were breached and if so what the remedy should be,rather than a dispute as to whether the Co-op’s by-laws and rules were reasonable.) In the circumstances, the parties suggested and Iagree that the appropriate standard of review should be that enunciated by Justice Molloy in Tamil Co-operative Homes Inc. v.Arulappay, supra.[2] 42.

Pursuant to that standard of review, I accordingly should not intervene to deviate from the outcome apparently desired by theBoard, (and in this case the General Membership as well), unless I am satisfied: a. that the respondents have not been dealt with in accordance with principles of natural justice and procedural fairness; or b. that the Board and General Membership did not have a reasonable basis for their decisions. Natural Justice and Procedural Fairness 43. As emphasized in Neill-Wycik Co-operative College Inc. v.

Swick, supra, at paragraph 15, natural justice and proceduralfairness do not require Co-operative Boards, (or meetings of a Co-operative’s general membership for that matter), to address issues ofthis nature by conducting trials or otherwise providing members with the full panoply of rights that exist in either the civil or criminalcontext. 44. For example, there is no requirement that such assemblies act only on evidence or exhibits under oath, that all witnesses musttestify in the presence of affected members, or that affected members must be afforded rights of cross-examination. 45.

Generally, the requirements of procedural fairness can vary depending on the nature of the particular complaint. 46. At a minimum, however, natural justice and procedural fairness require that a Co-op member facing eviction be fullyinformed as to the nature of the case he or she has to meet, and be provided with a reasonable opportunity to meet it.

This includesreasonable notice of a hearing, advance provision of a clear understanding as to why membership and occupancy rights may beterminated, advance disclosure of the documentation, information and witnesses upon which the Board and/or General Membership willrely, and an opportunity to be present and heard.[3] 47. Moreover, as acknowledged by counsel for the applicant, there must, at the very least, be compliance with the proceduralrequirements mandated by the Co-operative Corporations Act, supra. 48.

In the case before me, the Co-op indicated and acknowledged, (through the candid evidence of Ms Schlueter), that it waspresented with a type of situation it had never dealt with before. 49. In struggling to deal with that novel situation, I think the Co-op unfortunately failed, in various ways, to ensure that MrHickox and Ms Lavallee were dealt with in accordance with principles of natural justice and procedural fairness, in the sense required. TIMING OF NOTICE 50. From the outset, the timing of the written notice given to Mr Hickox and Ms Lavallee, (of the Board’s intended meeting to

deal with contemplated termination of the respondents’ rights of membership and occupation), was insufficient. In that regard: a. As noted above, the respondents were served with the Board’s initial notice on August 22, 2012, in relation to a meeting intended for August 28, 2012, thereby giving the respondents approximately 6 days’ notice of that meeting. b.

Article 10.02(

a) of the Co-op’s By-law #2 provides, inter alia , that “The Board may not terminate any member’s occupancy rights unless written notice has been delivered to the member’s unit at least ten days prior to a meeting of the Board (except in case of emergency, e.g., imminent or continuing breach of peace or of the law, or reasonably anticipated danger to persons, premises or property). c. Although the Co-op relies on the bracketed “emergency” proviso of

Article 10.02(

a) set out above, this is problematic and insufficient for a number of reasons. In particular: i. The supposed factual basis for reliance on the Co-op’s “emergency” proviso is undermined and belied by the conduct of the Board itself. It was content to delay scheduling of its initial meeting with the respondents at least 6 days after the events of August 22, 2012, which were said to underlie its concerns. The Board then was content to delay scheduling of its further meeting, to reconsider the situation, until September 13, 2012; i.e., a full three weeks after the events of August 22, 2012.

None of this is consistent with a genuine belief that the underlying situation presented such an imminent danger and state of emergency that it warranted abridged service of written notice to the respondents. ii. Pursuant to s.171.8(2).3 of the Co-operative Corporations Act , supra , written notice to members of a Co-op facing contemplated termination of their membership and occupation rights “must be given at least ten days before the meeting of the board of directors at which the matter will be considered”.

The legislation contains no provision for abridgment of that minimum notice period, for reasons of perceived “emergency” or otherwise. In that regard, I specifically note that, while s.171.8(3) permits a Co-operative’s board of directors to enact a by-law determining procedures for the termination of membership and occupancy rights of members, that ability is expressly made “subject to the rules in subsection (2)” of s.171.8(2) of the legislation, which includes the minimum 10 day notice period set forth above.

The “emergency” proviso enacted by the Co-op, and relied upon by its Board in this case, therefore contravened the governing legislation. 51 . In my view, the insufficiency of written notice in this case was not cured by the Board’s agreement to meet with the respondents on September 13, 2012, (in respect of which the Board admittedly served no further notice except for short memoranda advising the respondents of the Board’s willingness to meet at a certain place and times). 52 .

That further meeting was not an “adjournment” of the Board’s earlier meeting on August 28, 2012, when the Board met and purported to finally decide the matter in the respondents’ absence, which in turn triggered the almost immediate service of eviction paperwork on the respondents. 53 . Nor did the Board, in agreeing to the further meeting on September 12, 2012, purport in any way to vacate its earlier decision made in the respondents’ absence, pending the Board’s further meeting.

To the contrary, the Board’s subsequent written decision, provided to the respondents on September 14, 2012, confirms that the Board approached the second meeting as one to determine whether or not the Board’s earlier decision should be “upheld”. 54 . In the result, because of the short and insufficient notice and their inability to return to London in time for the original meeting on August 28, 2012, the respondents essentially were condemned in absentia , without a hearing. 55 .

The respondents subsequently were provided with opportunities to persuade the Board and then the General Membership to reconsider and reverse that initial decision. However, there is an obvious and important qualitative difference between a hearing de novo and hearings in the nature of appellate review where a party, previously and formally condemned, faces the uphill task of persuading those hearing an appeal to reverse a standing decision now operating against them. 56 .

In my opinion, the resulting situation was a violation of the fundamental principles of natural justice and procedural fairness, and resulted in precisely the sort of situation the minimum notice period mandated by the legislation was designed to prevent. CONTENT OF NOTICE 57 . Beyond problems inherent in timing of the notice provided to the respondents, its content also was deficient and questionable. 58 . This included its failure, in my opinion, to provide the respondents with an adequate indication of the case they were obliged to meet. For example: a.

The specified grounds and details made reference only to Mr Hickox and his conduct. There is no reference whatsoever to Ms Lavallee or anything she might have done to warrant contemplated termination of her membership and occupation rights. The notice therefore left the respondents completely in the dark about the justification being put forward for termination of her rights until they received an oral indication from the Board, at the meeting on September 13, 2012, that the Board was relying on the “VANDALISM” provisions of the Co-op’s rules and regulations.

Even then, despite questions from the respondents, the Board declined to explain how or why those provisions might apply in the circumstances. b. Although the notice reference to the “Nuisance” provisions of

Article 5.02 was adequate specification of that termination ground relied upon by the Board, the notice reference to the “Rules and Regulations” provisions of

Article 5.03 was not. In particular, it was insufficient and inappropriate for the notice to simply cite

Article 5.03, and attach a copy of numerous Rules and Regulations, without specifying the particular Rules and Regulations upon which the Board intended to rely. In my view, a Co-op member facing the loss of his or her home should not be obliged to “guess” about such important matters in advance of a meeting that will decide his or her fate. The injustice of that is, once again, exemplified in this case by the respondents having no idea that the Board was relying on the

“VANDALISM” provisions of the Rules and Regulations until they were told that during the Board meeting on September 13, 2012. c. The “Details” set forth in the notice made it reasonably clear to the respondents that they would need to address the conduct of Mr Hickox in the Co-op office on August 22, 2012.

However, the notice also made vague reference to Mr Hickox having had other unspecified “disagreements” with the member he confronted in the Co-op office, (i.e., Ms Page), and to his specified conduct being a perceived “ escalation in aggressive behavior”; a perception which obviously suggests considered comparison of his conduct in the office on the day in question with earlier unspecified conduct.

These vague and open-ended references to other unspecified behavior of Mr Hickox effectively left the respondents in the position of not knowing, even in a general way, the facts or alleged misconduct that might be relied upon by those seeking to terminate their membership and occupation rights. 59 . Equally troubling are indications in the notice that, contrary to the principles of natural justice, the Board already had made up its mind as to whether there had been breaches of the Co-op rules, and what the appropriate response should be, before the respondents were afforded any hearing whatsoever.

In particular: a. The notice indicates contemplated termination of the respondents’ membership and occupancy rights on August 29, 2012; just one day after the Board’s contemplated first meeting with the respondents. Such an approach runs counter to provisions of the Co-op’s own By-law #2, which provides, in

Article 10.02(b), that any termination of occupancy rights by Board resolution “shall be a reasonable time after the meeting, but normally at least thirty days after the meeting”. On any objective view, I think, 24 hours would not provide a family with two young children “reasonable time” to vacate after the Board’s decision; (something which the Board itself seems to have acknowledged, belatedly, in providing the respondents and their children with two weeks to vacate following its meetings on August 28 and September 13, 2012).

The Board’s advance contemplation of such a Draconian position, notwithstanding the Co-op’s own by-law provisions, strongly suggests that the Board already had formed a very firm view of the underlying merits and appropriate outcome before sending its notice. b. In the final paragraph of its written notice, the Board expressly acknowledged that it already had made a decision: “The Board has decided to proceed with immediate eviction given the escalation in aggressive behavior which represents a safety concern and his refusal to cease and desist.” [Emphasis added.] 60 .

In the circumstances, the notice therefore indicates disregard for natural justice and procedural fairness not only because of what it failed to say, but also because of what it said. CONSIDERATION OF ADDITIONAL MATTERS 61 . The procedural unfairness inherent in the open-ended notice then was realized or amplified by the respondents being confronted, during the Board meeting on September 13, 2012, and again during the General Membership meeting on October 17, 2012, with alleged matters and misconduct not previously identified as part of the case the respondents would be obliged to meet. 62 .

As noted above, this apparent and successive expansion of the case being made against the respondents, in support of their membership and occupancy rights being terminated, included the following: a. A Board member, (Ms Sampaio), expressly acknowledged during the meeting of September 12, 2012, that the Board was relying not only on the office confrontation between Mr Hickox and Ms Page, but also on perceived misconduct of Mr Hickox prior to that confrontation; e.g., during his tenure on the Co-op’s landscaping committee. b.

Ms Page presented, during the meeting of the General Membership, evidence of alleged misconduct by Mr Hickox prior to the confrontation in the Co-op office. c. Ms Norris presented, during the meeting of the General Membership, evidence of alleged misconduct after the confrontation in the Co-op office. (Again, this information was presented to the Board prior to its meeting with the respondents on September 13, 2012, and therefore almost certainly factored into the Board’s determination to “uphold” its earlier decision.

However, the respondents received no notice whatsoever of that additional information until circulation of the Co-ordinator’s report with notice of the General Membership meeting, on October 5, 2012, and no details of the identity or alleged observations of Ms Norris until she read her email aloud during the General Membership meeting on October 17, 2012.) d.

While addressing the General Membership at the meeting on October 17, 2012, the president of the Board made reference to further unspecified grievances concerning the respondents, (none of which previously had been brought to the respondents’ attention), which there supposedly was insufficient time to explore. 63 . In my opinion, this all was unfair and improper, from a natural justice perspective. 64 .

Even basis considerations of fairness required that the Board and General Membership should have confined their considerations to the matters specified in the notice provided to the respondents, (except perhaps by way of focused and subsequent rebuttal of additional matters raised by the respondents themselves). 65 . Alternatively, that notice should have been supplemented in an appropriate and timely way to ensure that the respondents had been adequately informed, prior to all hearings, of the case they were obliged to meet. 66 .

In the result, there is a very real possibility that the Board and General Membership decisions to terminate the respondents’ rights of membership and occupancy were based on considerations other than those specified in the notice provided to the respondents; i.e., on a case significantly different than the one they were told they would have to meet. RIGHT TO BE HEARD 67 . I think it a matter of serious concern that, according to the unchallenged evidence, the respondents were prevented from

presenting the General Membership with intended evidence confirming there was no truth to Ms Page’s provocative allegations; i.e., that Mr Hickox was a “diddler” being investigated by the Children’s Aid Society. 68 . In my opinion, the respondents were entitled to raise and address that provocative conduct of Ms Page in support of their request that the General Membership vary rather than affirm the Board’s decision; i.e., that the situation be addressed by internal relocation rather than termination. 69 . At a minimum, natural justice required that they accordingly receive a proper hearing in that regard. 70 .

The respondents nevertheless were denied that opportunity. 71 . In particular, after permitting advance circulation of evidence that Ms Page had made the allegations, the Co-op then prevented the respondents from “completing the picture” by denying them an opportunity to then address and rebut the allegations at the General Membership meeting. 72 . This effectively left the General Membership with only “half the story” in that regard, and it was the very damning half of the story, from the respondents’ perspective. 73 .

In the result, the General Membership proceeded to vote on whether the respondents should be permitted to remain within the Co-op community after being presented with unaddressed allegations that Mr Hickox was a possible child molester under investigation by the CAS. 74 . In my view, inappropriate constraints on the respondents’ right to be heard accordingly resulted in the General Membership vote being carried out in circumstances that were horribly prejudicial. 75 .

In particular, it raises the very real possibility that some members may have voted to evict the respondents from the Co-op for reasons, (namely, concern there was a pedophile in their midst), that were inappropriate and very far removed from the conduct of Mr Hickox on August 22, 2012. RESTRICTION OF OUTCOMES 76 . From the outset of the proceedings initiated after the events of August 22, 2012, the Board seems to have focused exclusively on the possibility of dealing with the situation by terminating the respondents’ rights of membership and occupancy rights. 77 .

There was, for example, no apparent consideration given to the alternative possibility of dealing with the situation by relocating the respondents and their children to another unit within the Co-op, as soon as possible; i.e., to reduce or eliminate the prospect of further tension or conflict between the respondents and Ms Page. 78 . In my opinion, there was nothing inherently wrong or otherwise objectionable in the Board choosing to exercise their discretion in that manner. 79 .

In particular, a board’s consideration of alternative measures is not required by the relevant provisions of the Co-operative Corporations Act , supra . Similarly, provisions of the Co-op’s By-law #2,

Article 10, permit but do not require the board to consider imposition of remedial measures short of termination. 80 . However, different considerations apply when it comes to the options to be considered by the General Membership during any appeal from the Board’s decision, such as the appeal pursued by the respondents in this case. 81 . In particular, such appeals are governed by the underlying legislation, and s.171.8(2).14 in particular reads as follows: 14. The appeal shall be decided by a majority vote of the members and the members may confirm, vary or set aside the board’s decision .

If no decision is made by the members or if there is no quorum at the meeting or if there is no longer a quorum when the vote is to be taken, the board’s decision shall be deemed to have been confirmed. [Emphasis added.] 82 . These provisions make it clear that, during the vote itself, the General Membership must be presented with an opportunity not only to confirm or set aside a Board’s decision to terminate membership and occupation rights, but also to vary that decision in whatever manner it might think appropriate. 83 . Unfortunately, that too was not done in this case. 84 .

In the ballots distributed to members voting on the respondents’ appeal, options presented to the General Membership were limited to agreement or disagreement with the Board’s decision to terminate the respondents’ rights of membership and occupancy. It accordingly was not possible for members to vote in favour of varying the Board’s decision; (e.g., to permit and direct location of the respondents within the Co-op, as they were requesting, and which other members apparently wanted to consider). 85 .

In my opinion, this was contrary to the legislation, and gives rise to a further legitimate concern that the outcome here was tainted by insufficient regard to procedural fairness. 86 . In particular, there is a distinct possibility that some of the General Membership may have welcomed a “middle ground” solution, (beyond effectively doing nothing, yet also short of termination), but felt compelled to uphold the Board’s termination decision because such members also believed something had to be done to address the situation and no other option to that effect was made available.

87 . In short, the outcome of the appeal may not necessarily have been the same had there been compliance with the procedural requirements of the legislation, presenting an additional option to the General Membership during the course of the vote. Reasonable Basis for Termination 88 . In considering whether the Board and General Membership had a reasonable basis for terminating the respondents’ membership and occupancy rights, I believe the situation of Mr Hickox and Ms Lavallee should be considered separately. 89 .

Doing so seems entirely consistent with the Co-op’s own focus on individual membership, as demonstrated by its insistence on each member signing a separate Occupancy Agreement. 90 . It also seems consistent with the reality that the Co-op’s internal “Use and Behaviour” provisions, and its “Rules and Regulations”, are directed with rare exception towards the personal conduct of an individual member; i.e., the individual member either doing something himself or herself, or permitting something to happen within his or her assigned unit. 91 .

As counsel for the applicant acknowledged during the course of submissions, it may be that there was a reasonable basis for terminating the membership and occupancy rights of one respondent but not the other – with the possibility that one respondent alone might have the right to remain in the Co-op unit with the couple’s children, while the other effectively would be forced to vacate. Such an outcome obviously would present the respondents collectively with a difficult situation, necessitating difficult decisions.

However, those further decisions would be a matter for the respondents to address, rather than the Co-op or the Court. 92 . I therefore consider, in turn, the situation of each respondent. DANIEL HICKOX 93 . It seems quite clear to me that there was a reasonable basis upon which the Board and General Membership could have terminated the membership and occupancy rights of Mr Hickox, after ensuring compliance with natural justice and procedural fairness. 94 .

Pursuant to the applicable standard of review, the question in that regard is not whether I believe the decisions of the Board and General Membership were correct, based on the evidence presented before me. Rather, the question is whether the evidence confirms the existence of a reasonable basis on which the Board and General Membership could arrive at their respective decisions. 95 .

In this case, at the very least, Ms Schlueter and Ms Norris, (who appear to be witnesses that are both reliable and credible, with no apparent reason to lie or distort the truth), presented strong evidence of misconduct by Mr Hickox on August 22, 2012, both inside the Co-op office and immediately thereafter, capable of supporting conclusions: a. that Mr Hickox behaved in a fashion that might unreasonably interfere with the enjoyment of other members, (Ms Page and Ms Norris), or committed an illegal act on the common elements, (by spitting on Ms Page), thereby breaching

Article 5.02 of the Co-op’s “Use and Behaviour” provisions in By-law #2; and b. that Mr Hickox did not exercise care for the safety of others, (Ms Page and Ms Schlueter), thereby breaching “Safety” rule no. 1 of the “Rules and Regulations” set out in

Schedule “B” of the Co-op’s By-law #2. 96 . In my opinion, however, even the admitted conduct of Mr Hickox within the Co-op office that day was capable of supporting the above conclusions. 97 . In particular, Mr Hickox admits that, despite his acknowledged state of mind at the time, the history of confrontation between himself and Ms Page, and Ms Schlueter’s repeated requests that he leave and come back later, he made a conscious and deliberate decision to remain so that there would be a confrontation with Ms Page, which then would be witnessed by Ms Schlueter.

During that confrontation, Mr Hickox also acknowledged, at a minimum, to use of profanities while shouting at Ms Page in very close proximity. 98 . Such admissions are quite capable, in my opinion, of justifying a conclusion that Mr Hickox was the aggressor that day, and one who unreasonably interfered with the enjoyment of other members or exercised insufficient care for the possible safety of others. 99 .

Had the Co-op Board and General Membership focused exclusively on such conduct, extended proper procedural fairness, and then made a decision to terminate the membership and occupancy rights, it seems very unlikely that the Court would have had any basis upon which to intervene. KATHERINE LAVALLEE 100 . On the other hand, it seems to me that the same cannot be said in relation to Katherine Lavallee, as I frankly see nothing whatsoever in the evidence before me to suggest any reasonable basis for the termination of her rights of membership and occupancy. 101 .

In particular, there is no evidence, in my opinion, capable of justifying any suggestion that Ms Lavallee unreasonably interfered with the enjoyment of other members, committed any illegal act, or failed to exercise due regard for the safety of others. 102 . There is evidence that Ms Lavallee looked at Ms Page through the window of a closed door, as she necessarily approached the Co-op office to speak with Ms Schlueter about what had just happened, and that Ms Norris felt this was intimidating. 103 .

However, it seems to me that such evidence hardly provides any reasonable basis for a finding that Ms Lavallee violated any of the Co-op’s internal rules justifying the eviction of Ms Lavallee from her home. In that regard, I also note the absence of any indication, in the material or submissions before me, that the Co-op relies on such conduct in support of the decision to terminate Ms Lavallee’s rights. 104 . Rather, in support of the actions taken vis-à-vis Ms Lavallee, the Co-op relied on the “VANDALISM” provisions of the “Rules

and Regulations” set forth in

Schedule “B” to the Co-op’s By-law #2. 105 . As noted above, those provisions make any act of “vandalism, theft or malicious mischief” grounds for immediate termination of a member’s occupancy agreement, whether such act is perpetrated by the member, any resident of the member’s household, or any guest of the member. 106 . In my view, however, those provisions have no application to the underlying circumstances. 107 .

In particular, while the operative terms used therein are not defined by the Co-op’s by-law, “vandalism” and “theft” obviously concern wrongdoing in relation to property, and common sense, (reflected in the ejusdem generis canon of construction often adopted and employed by the law), suggests that the term “malicious mischief” similarly was meant to connote some sort of wrong done to property. 108 .

Certainly, such a connotation is reinforced by the definition of “mischief” in s.430(1) of the Criminal Code , (if that was what the Co-op had in mind), as each component of that definition expressly emphasizes a focus on various wrongs done to “property”. [4] 109 . In the case before me, there is no reasonable basis for any suggestion that Ms Lavallee (or Mr Hickox for that matter) committed any wrong in relation to property. 110 .

To the contrary, I think it clear that the Board’s somewhat belated resort to the “VANDALISM” provisions was prompted not by their substantive application to the facts, but by the wording therein expressly permitting termination of a member’s rights because of something done not by the member himself or herself, but by a resident of the member’s household. 111 . In particular, at its meeting on September 13, 2012, the Board clearly was being pressed by the respondents to indicate some kind of basis for making Ms Lavallee responsible for any misconduct of Mr Hickox.

Without reasons, the Board then seized on the wording of the “VANDALISM” provisions to tar Ms Lavallee with the same brush, and thereby “backfill” support for its earlier decision to evict both respondents. 112 . For the reasons I have outlined, I think this was inappropriate and unjustified. Conclusion 113 .

For the reasons outlined above, I find there was no reasonable basis for the purported termination of Ms Lavallee’s rights of membership and occupation, and that the injustice of the proceedings taken against her was compounded by the Co-op’s failures to ensure compliance with principles of natural justice and procedural fairness. 114 . The request for a declaration that her membership and occupancy rights have been terminated accordingly is refused. 115 .

As Ms Lavallee’s rights of membership and occupation therefore continue, she, at least, has the right to continued occupation within the Co-op, along with her children. 116 . As a writ of possession is directed towards premises rather than persons, and at least Ms Lavallee and her children are entitled to remain in the premises, the writ of possession requested by the Co-op therefore also must be refused. 117 .

As for Mr Hickox, I find there was a reasonable basis for commencement of internal proceedings by the Co-op that in turn might properly have led to termination of his rights of membership and occupation, in circumstances that may not have warranted court intervention with the outcome. 118 . In particular, the conduct of Mr Hickox on August 22, 2012, was reprehensible and gave rise to legitimate concerns.

Those circumstances may well have satisfied both a majority of the Co-op Board, and a majority of Co-op members attending a meeting to consider an appeal from the Board’s decision, that terminating the membership and occupancy rights of Mr Hickox was the appropriate solution. 119 . However, as outlined above, the Co-op repeatedly failed to ensure that steps taken to address and deal with possibly legitimate concerns complied sufficiently with principles of natural justice and procedural fairness. 120 .

For that reason, the outcome of the proceedings taken to date against Mr Hickox cannot stand, and I decline to grant the Co- op’s requested declaration that the membership and occupation rights of Mr Hickox have been terminated by the proceedings taken to date. 121 . I emphasize that this should not be read as any approbation or vindication of the conduct displayed by Mr Hickox on August 22, 2013. 122 . To the contrary, as indicated above, that conduct clearly was reprehensible and gave rise to legitimate concerns. 123 . Moreover, as the Court emphasized in Neill-Wycik Co-operative Inc. v.

Swick, supra , refusal to endorse a Co-op’s particular decision, because it was reached after denial of natural justice and procedural unfairness, does not necessarily preclude renewed consideration of the underlying complaints or conduct in a manner that takes care to avoid similar failings in the future. 124 . For present purposes, however, it nevertheless may not be assumed that the misconduct necessarily would have resulted in the same outcome had the Co-op sufficiently complied, at all stages of the process, with the principles of natural justice and procedural fairness. 125 .

In particular, such compliance, coupled with recognition that the membership and occupation rights of Ms Lavallee and her children would continue in any event, may have led the board and/or general membership to adopt an alternative approach to the

situation, (e.g., relocation, possibly coupled with temporary suspension of occupation rights pending relocation), short of permanently terminating all rights Mr Hickox has in the Co-op. 126 . Of course, other possible alternatives may not have been acceptable to the Board and General Membership in any event, even if there been no procedural injustice. 127 . For present purposes, however, I am unable to assume or accept that a just result was arrived at unjustly. 128 . In the result, the Co-op’s current application must be dismissed in its entirety. Costs 129 .

Because my decision was reserved, the parties were unable to make any submissions regarding costs. If the parties are unable to reach an agreement in that regard: a. The respondents may serve and file written cost submissions, not to exceed four pages in length, (not including any bill of costs), within two weeks of the release of this decision; b.

The applicant then may serve and file responding written cost submissions, also not to exceed four pages in length, within two weeks of service of the respondents’ written cost submissions, (if any), or within four weeks if no cost submissions are delivered by the respondents; and c. The respondents then may serve and file, within one week of receiving any responding cost submissions from the applicant, reply cost submissions not exceeding two pages in length. 130 .

If no written cost submissions are received within four weeks of the release of this decision, there shall be no costs of the application. “Justice I.F.Leach” Justice I. F. Leach DATE: April 22, 2013