VIII. Co-op housing

The principles outlined throughout this Policy apply equally to co-op housing. The following information discusses some of the issues that are unique to the co-op housing context.

When it is available, co-op housing can also be an attractive source of quality accommodation for Ontarians who cannot afford adequate options in the private rental housing market, and/or who wish to live in a more community-oriented setting. As with social housing, however, waiting lists for co-op housing units are extremely long, and new co-op developments are rare in Ontario.

Co-op housing operates effectively through a system of by-laws and the obligations of members and the co-op to each other. A co-op generally has an elected board responsible for decision-making about the co-op’s administration. It is important to note, however, that the Code has primacy over the policies, procedures and by-laws of co-ops. Where there is conflict between a co-op by-law (even if it is member-approved) and the Code, the by-law must give way to the requirements of the Code.

Example: In one case, a housing co-op sought to evict an occupant for failing to perform the two hours of volunteer work each month required by the co-op’s by-law, despite the fact that she had provided a doctor’s note that she was incapable of performing the volunteer work for medical reasons. The Ontario Divisional Court stated that the co-op had a duty to respect the rights of its occupants under the Ontario Human Rights Code and to accommodate the needs of an occupant with a disability, to the point of undue hardship.^[221]

A co-op housing provider should be aware of the ways that “neutral” rules, such as those contained in occupancy policies, may have an adverse impact on people identified by the Code. For example, a transfer policy that is based on length of tenure may have a negative impact on Code-protected individuals whose need to transfer may be urgent.

Example: A recently widowed older woman may not be able to pay the rent of the two bedroom unit that she occupied with her spouse. If she is not able to transfer to a more affordable one-bedroom unit without delay, she may face homelessness.

A co-op housing provider should conduct an individualized assessment of a co-op member’s circumstances when implementing and applying by-laws. Where the member has needs related to a Code ground, the co-op housing provider is expected to modify or waive the by-law requirement and to accommodate the Code-related needs if to do so would not cause undue hardship.

Example: A co-op requirement that members who receive social assistance pay the full “shelter allowance” portion of their social assistance as rent has been found to be discriminatory.^[222] Housing co-operatives must treat the income of all members in the same way, whether it is from public assistance or employment. Co-op members who receive a rental subsidy should also be treated in the same way, no matter what the source of their subsidy.

^[220] As mentioned previously, this Policy interprets residential tenancies as including not-for-profit co-operative housing arrangements
^[221] The Court applied the Code and the OHRC’s Policy and Guidelines on Disability and the Duty to Accommodate, supra, note 19 and held that it would have been reasonable and appropriate for the co-op to obtain answers from the occupant’s doctor to determine if any of the volunteer tasks could be performed, notwithstanding her medical condition. If so, it could have accommodated her by assigning her tasks she could perform, but if not, the cost of accommodating her by exempting her from the volunteer work requirement would be unlikely to impose an undue hardship. The Court concluded that it would be unjust in all the circumstances to evict the occupant: Eagleson Co-Operative Homes, Inc. v. Théberge, [2006] supra, note 19.
^[222] Iness v. Caroline Co-operative Homes Inc. (No.5), 2006, supra, note 66. Ms. Iness was expected to pay the full shelter component of her social assistance as rent to her co-operative, instead of paying 25% of her income as rent, which she had done previously. As a result, she was no longer able to pay her insurance and hydro costs out of the shelter portion of her benefit, resulting in her having to cover these out of her basic living costs. The tribunal found that Ms. Iness was treated differently from other low-income tenants, who were not in receipt of social assistance and were expected to pay a percentage of their income in rent.