Once the members of a housing co-operative vote in favour of a no-smoking bylaw, the corporation has a duty to enforce it. How enforcement is handled will depend on the specific wording of the bylaw as well as what is legally required of housing co-ops regarding termination of membership and occupancy rights.
Quite frankly, enforcement will be much more of a challenge if a member flatly denies smoking in his or her unit. In this case, the board must gather as much evidence as possible regarding the presence of second-hand smoke and its impact on other members. See do the groundwork for more information and carefully log all second-hand smoke complaints.
It is recommended that housing co-op members in breach of a no-smoking policy be given at least one warning letter prior to the board taking more formal steps.
Enforcement procedures
Section 171.8 of the Co-operative Corporations Act deals with the termination of memberships for housing co-operative members:
(2) 1. Membership and occupancy rights may be terminated only by a majority of the board of directors at a meeting of the board;
(2) 3. The member shall be given written notice that the board of directors will consider terminating the member's membership and occupancy rights. The notice must be given at least ten days before the meeting of the board of directors at which the matter will be considered;
(2) 4. The notice must be signed by a director of the co-operative or by any other person authorized by the bylaws for the purpose and must:
- set out the time and place of the board's meeting;
- set out the grounds for the proposed termination;
- identify the member unit to which the member has occupancy rights;
- specify the date of the proposed termination;
- advise the member that he or she need not vacate the member unit but that the co-operative may obtain possession of the unit by obtaining a writ of possession following the termination of the member's membership and occupancy rights;
- advise the member that he or she may appear and make submissions at the board's meeting; and
- advise the member that he or she may appeal the board's decision to the members.
(2) 8. The member shall be given written notice of the decision of the board of directors within five days after the board's meeting.
Handling disputes
If there is a disagreement between a housing co-operative corporation and a member over an alleged breach of a no-smoking policy, the law provides a remedy.
Section 171.8 (2) (9) of the Co-operative Corporations Act states that members may appeal the board's decision to the members. The effect of the decision is suspended until the appeal is disposed or abandoned.
To appeal, a member must give written notice to the co-operative within seven days, or such longer period as the bylaws provide, after the notice of the board's decision has been given to the member (section 171.8 (2) (10)).
The appeal shall be considered at a meeting of the members held at least fourteen days after the notice to appeal is received (section 171.8 (2) (11).
If the co-operative receives written representations with the member's notice of appeal, the board of directors shall ensure that a copy of the representations is given, before the meeting at which the appeal will be considered, to each member entitled to receive notice of the meeting. The distribution of the representations shall be at the co-operative's expense. This paragraph does not apply if the representations exceed 5,000 words (section 171.8 (2) (12)).
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 of 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 (section 171.8 (2) (14)).
If the board of directors refuses to distribute copies of a member's representations, the board shall ensure that written notice of its refusal together with written reasons for it are given to the member within ten days after the representations were received by the co-operative (section 171.8 (5)).
A co-operative member whose representations the co-operative has refused to distribute may apply to the Superior Court of Justice for an order (section 171.8 (6)). The board of directors may also apply to the Superior Court of Justice for an order permitting the board of directors to refuse to distribute the representations and the court, if it is satisfied that subsection (4) applies, may make any such order it thinks fit (section 171.8 (7)).