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.
Section 171.8 of the Co-operative Corporations Act deals with the termination of memberships for housing co-operative members:
1. Membership and occupancy rights may be terminated only by a resolution of the board of directors.
2. Membership and occupancy rights may be terminated only if the member ceases to occupy a member unit or on a ground set out in the by-laws. Membership and occupancy rights may not be terminated on a ground in the by-laws that is unreasonable or arbitrary.
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.
4. The notice must,
i. set out the time and place of the board’s meeting at which the matter will be considered,
ii. set out the grounds for the proposed termination,
iii. identify the member unit to which the member has occupancy rights,
iv. specify the date of the proposed termination,
v. advise the member that he or she may appear and make submissions at the board’s meeting, and
vi. advise the member that he or she may appeal the board’s decision to the members if the by-laws provide a right of appeal for a termination on the grounds set out in the notice.
4.1 The notice must advise the member that he or she need not vacate the member unit but that, after the termination of the member’s membership and occupancy rights, the co-operative may obtain possession of the member unit,
i. by obtaining an order of the Landlord and Tenant Board terminating the member’s occupancy of the member unit and evicting the member if Part V.1 of the Residential Tenancies Act, 2006 applies, or
ii. by obtaining a writ of possession from the court if Part V.1 of the Residential Tenancies Act, 2006 does not apply.
5. If a meeting is adjourned, no new notice is required if the time and place of the continuation of the meeting is announced at the original meeting.
6. The member has a right to appear, either personally or by a person authorized under the Law Society Act to represent the member, and to make submissions at the meeting of the board of directors.
7. In a decision to terminate the member’s membership and occupancy rights, the board of directors may specify a date for the termination that is later than the proposed date that was specified in the notice to the member.
8. The member shall be given written notice of the decision of the board of directors within 10 days after the board’s meeting.
If there is a disagreement between a housing co-operative and a member over an alleged breach of a no-smoking bylaw, some, not all, co-operative’s bylaws give members the right to appeal a termination of membership (eviction).
If there is an appeal bylaw in place then the member must give written notice of the appeal to the co-operative within seven days of receiving the termination letter. If notice is given properly than the appeal shall be considered at a meeting of the members at least 14 days after it was received.