) ) RAINBOW CIRCLE CO-OPERATIVE INC. Respondent (Applicant) – v. –, 2013 ONSC 5907

CITATION : Rainbow Circle Co-Operative Inc. v. Singh, 2013 ONSC 5907 DIVISIONAL COURT FILE NO.: 69/13 DATE: 20130918 ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT LAX, SACHS AND GRACE JJ. BETWEEN: ) ) RAINBOW CIRCLE CO-OPERATIVE INC. Respondent (Applicant) – and – YVONNE SINGH Appellant (Respondent) )) )) )) )) )))) Paula Boutis , for the Respondent Arthur Zeilikman , for the Appellant ) ) ) HEARD at Toronto: September 18, 2013 SACHS J. (orally) [ 1 ] This is an appeal from the judgment of Moore J. dated January 11, 2013, terminating the appellant, Ms.

Singh’s, membership and occupancy rights in the respondent Co-Operative. [ 2 ] The respondent is a non-profit housing co-operative. The appellant is a single mother of three who has lived in and been a member of the Co-operative since mid-2007. Beginning in 2010, several members of the Co-operative complained about the appellant and/or her children’s behaviour. While the majority of the complaints were made by the appellant’s immediate neighbours, other members also complained about the appellant getting into verbal arguments and making violent threats.

As a result of these complaints, on June 29, 2012, the respondent’s Board of Directors served the appellant with a detailed Notice to Appear at a board meeting on July 12, 2012 where the Board would be considering ending her membership and occupancy rights. [ 3 ] On July 12, 2012, the Board held their meeting. A member of the Co-Operative Housing Federation of Toronto was brought in as an outside Chair. Most of the complainants attended. Ms. Singh attended with three family members and a friend and submitted letters of support to the Board. The appellant orally addressed each point in the Notice to Appear.

When she finished, the complainants and the appellant left. The Board deliberated and voted unanimously to terminate her membership and occupancy rights. The Board then voted five to one to suspend its decision unless it received three more complaints over the next year. The appellant was given the decision on July 15, 2012. [ 4 ]

Article 9.4 of the respondent’s occupancy by-law provides members with the right to appeal the Board’s decision to the members. On July 19, 2012, the appellant emailed the Board confirming she would not appeal its decision to the members. [ 5 ] On August 3 and 16, 2012, the appellant’s immediate neighbours made four complaints about the appellant to the respondent. By letter dated August 27, 2012, the respondent informed the appellant that they had received three more complaints against her, the eviction decision was no longer suspended and she was to vacate the unit. The respondent then applied under s. 171.13 of the

Co-Operative Corporations Act to the Superior Court for an order terminating the appellant’s membership and occupancy rights. Theapplication was heard by Moore J. and the relief requested was granted on January 11, 2013. [6] The appellant seeks to set aside the judgment of Moore J. on the basis that the Court erred in finding the Board’s decision toevict was reasonable and procedurally fair and that the Court erred by using and applying the incorrect test for bias. [7] This Court’s jurisdiction flows from s. 171.16(1) of the Co-Operative Corporations Act which states: An appeal lies to the Divisional Court from a final order of a judge under

section 171.13 or 171.14. [8] The Supreme Court of Canada set out the standard of review that applies to judicial appeals in Housen v. Nikolaisen, 2002SCC 33 , [2002] S.C.C. 33, [2002] 2 S.C.R. 235: On a pure question of law the basic rule with respect to the review of a trial judge’s findings is that an appellate court is free to replacethe opinion of the trial judge with its own.

Thus the standard of review on a question of law is that of correctness. (at para. 8) The standard of review for findings of fact is that such findings are not to be reversed unless it can be established that the trial judgemade a palpable and overriding error. (at para. 10) Questions of mixed fact and law are subject to the ‘palpable and overriding error’ standard unless it is clear that the trial judge madesome error of law or principle that can be identified independent of the judge’s application of the law to the facts of the case.

In thesecircumstances, the error of law is extricable from the questions of mixed fact and law in issue and must be separated out and reviewed ona standard of correctness. (at paras. 36-37). [9] Procedural fairness issues do not require an assessment of the appropriate standard of review. [10] The first issue raised by the appellant is whether Moore J. erred in finding that the Board’s decisions to terminate theappellant’s membership and occupancy rights were reasonable. [11] The essence of the appellant’s submission in this regard is that Moore J. erred when he failed to analyze the four complaintsthat were received by the Board after its decision on July 12, 2012. [12] In this regard it is important to note once again that the Board’s decision to terminate the appellant’s occupancy andmembership rights was made on July 12, 2012 and that the appellant, in expressly deciding not to appeal that decision to themembership, implicitly acknowledged that as of that date, the Co-Operative was entitled to terminate her membership and occupancyrights.

Moore J.s’ reasons address this point at paragraph 7: Rainbow served Ms. Singh with its eviction decision on 15 July 2012. Ms. Singh has not pursued her right to appeal that decision. Thisraises a fairness issue for Rainbow and its members. Having written to Rainbow that she accepts the decision to evict and waives herappeal rights, she now seeks to undo the process and its outcome.

She is effectively making an end run around the process she agreed tobe bound by on becoming a member, an appeal to the membership. [13] As well, Moore J. correctly stated that the application before him was not an opportunity “to start the eviction process over”(para. 10). Neither is this appeal. [14] We are satisfied that Moore J. committed no error in failing to analyze the four additional complaints. These complaints werenot the basis for the respondent’s decision to terminate the appellant’s membership and occupancy rights. [15] The second issue raised by the appellant is that of procedural fairness.

The appellant argues that she should have had anopportunity to address the Board with respect to the four complaints that they received after July 12, 2012. We disagree. As we havealready noted, the Board had already made the decision to terminate her membership rights and the appellant had accepted that decision. [16] This is not a case like in Cooperative D’Habitation LaFontaine Inc. v. Menard [2003] O.J.

No. 253 S.C.J., where the lifting ofthe suspension was inevitable. [17] With respect to the issue of procedural fairness generally, we agree with the comments of Moore J. at para. 15: In this case, the Board afforded Ms. Singh a full and fair opportunity to address the concerns before it relating to her occupancy of theunit and it weighed her position along with those of the Co-op and the best interests of its members and decided that the best interests ofall concerned were best advanced by terminating Ms. Singh’s membership.

A democratic process unfolded and I see no basis tointervene in the outcome. [18] The third issue raised by the appellant is that of bias. The appellant alleges that Moore J. applied the wrong test for bias.

Whatever the test for bias is, we are of the view that Moore J. was correct in finding as follows: The fact that members had interactions with one another over their years of living together in a co-operative housing community issimply not a reason for members to recuse themselves from a Board meeting including an eviction hearing. [19] However, assuming that the reasonable apprehension of bias test is the test to be applied to these circumstances, that testrequires us to ask “what an informed person [would conclude] viewing the matter realistically and practically – and having thought thematter through.” [emphasis added] (Committee for Justice and Liberty v.

Canada (National Energy Board) [1978] 1 S.C.R.) 369). [20] In our view, no reasonably informed person, having thought the matter through, could or would conclude that there was areasonable apprehension of bias on the part of Ms. Dunnett or Ms. Pihl.

[ 21 ] For these reasons, the appeal is dismissed. LAX J. [ 22 ] I have endorsed the Appeal Book, “This appeal is dismissed for oral reasons given and recorded. Costs to the respondent in the amount of $4,500, all inclusive.” LAX J. SACHS J. GRACE J. Date of Reasons for Judgment: September 18, 2013 Date of Release: September 20, 2013 CITATION : Rainbow Circle Co-Operative Inc. v. Singh, 2013 ONSC 5907 DIVISIONAL COURT FILE NO.: 69/13 DATE: 20130918 ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT LAX, SACHS AND GRACE JJ. BETWEEN:

RAINBOW CIRCLE CO-OPERATIVE INC. Respondent (Applicant) – and – YVONNE SINGH Appellant (Respondent) ORAL REASONS FOR JUDGMENT SACHS J. Date of Reasons for Judgment: September 18, 2013 Date of Release: September 20, 2013