Backgrounder and Key Changes in the Proposed Occupancy By-Law

Backgrounder and Key Changes in the
Proposed Occupancy By-Law,
presented for discussion at the General Members’ Meeting,

January 24, 2017

By  Woodsworth’s By-Law Committee

The committee’s work is based on the model occupancy bylaw created by the Cooperative Housing Federation (CHF).

Our recommendations have been developed by consensus, even though we had different views.
We kept these principles in mind:
·         CHF has the expertise and proposed an occupancy bylaw that meets the needs of the majority of coops.  The bylaw meets our legal requirements under various laws (including the Cooperative Corporations Act, the Residential Tenancies Act and Ontario’s Human Rights Code).
·         CHF’s occupancy by-law has been reviewed by legal counsel.
·         Woodsworth members may want to amend the suggested bylaws that reflect decisions and practices at Woodsworth that have been considered by the membership.
·         We are not governed by the RTA (Residential Tenancies Act) other than with respect to evictions. We are governed by the Cooperative Corporations Act

The Occupancy By-Law has priority over other co-op by-laws.
This By-law governs over other co-op by-laws if there is a conflict. By-laws passed after this By-law can amend or add to this By-law, but they have to specifically state this.

Laws about Occupancy

In addition to this By-law certain laws affect occupancy at the co-op. These include the following laws in addition to other government requirements.
– The Co-operative Corporations Act governs the co-op. Parts of the Co-operative Corporations Act have important rules about occupancy that are not in this By-law.
– The Residential Tenancies Act has rules about co-op evictions that are not in this By-law.
– The Ontario Human Rights Code has important rules about housing that affect the co-op.

Comparison of key issues – current by-law, by-law committee recommendation and explanation

1. Member Deposit

Current By-Law
In article 3, section 11 of the Occupancy By-Law 
11. Last Month’s Housing Charge Deposit
This paragraph does not apply to members who are receiving a housing charge supplement.
See also: Membership By-Law – Procedures for Occupancy

By-Law Committee Recommendation
3.5 (b) Member Deposit
Amount of the member deposit
If members pay the full monthly housing charges, they must pay a member deposit equal to the monthly housing charges plus 50 percent.
If members receive housing charge subsidy, they must pay a member deposit equal to their monthly subsidized housing charges.
The member deposit is rounded to the nearest dollar.
If a member moves from full monthly housing charges to subsidized housing charge, their member deposit will be retained in full, subject to section D.

The last paragraph continues to allow members on subsidy to pay a lower member deposit. However, if non-subsidy members are temporarily on subsidy,  keeping the full deposit in their account allows for the eventuality of the member moving back to full housing charges.

2. Members’ Insurance

a) Current By-Law
8.02 Members’ Insurance
Members are expected to obtain whatever insurance they feel appropriate for theft of, or damage to, property owned by them and liability insurance for damage they may cause to the Co-op’s property.

By-Law Committee Recommendation
5.4 Members’ Insurance
Members can obtain public liability insurance and property insurance for their unit.  Members must not break any obligation that the co-op has to its insurance companies.  The use of a member’s unit must not increase the co-op’s insurance costs, or any other cost or liability of the co-op.

The committee struggled with this. The model by-law transfers liability to the member. The model says: “The co-op, co-op staff, contractors and other members will not have any liability to a member or a person in a member’s household for things that would be covered by a normal renter’s or co-op member’s insurance policy. It does not matter what caused any loss and it does not matter whether the member or anyone in the household had any insurance.”
We weren’t comfortable with the model Occupancy By-Law –  we thought it unfair.  Finally we got written advice from a co-op sector lawyer to consider moving to the 1992 version of the Occupancy By-Law.with the addition of the sentence “The use of a member’s unit must not increase the co-op’s insurance costs, or any other cost or liability of the co-op”.

b) Insurance
Q: There seem to be two conflicting sections on insurance in the bylaw.
A:         There are two sections on insurance, one for related uses (running a business out of your home) and the other for normal household use.  The bylaw committee consulted a lawyer very carefully (twice) on the insurance sections and the wording we have is, in our opinion, the best alternative (rather that making insurance mandatory for all members).

3. Principal Residence

Current By-Law
Principal residence – our by-law says one year.
7.06 Principal Residence
(a) A unit allocated to a member must be used as his or her principal residence. In addition, a member who does not personally occupy and reside in his or her unit for any period greater than one year, even if it remains his or her principal residence, must surrender occupancy rights in the Co-op and withdraw from membership on or before the end of such one-year period unless a longer absence is authorized by the Board under paragraph 7.08 (Sub-Occupancy), or otherwise.

By-Law Committee Recommendation
6.2.  Principal Residence
A member may not be absent from the co-op unit for a total of more than six months in any year without the permission of the Co-op.

This is a compromise number between our current year and the model by-law number of 3 months. Six months over a 12 month period is generous, but reasonable for anyone who needs to be away for family responsibility, vacation or study. It does protect the co-op though by having a statement about principal residence.

4. Persons Turning Sixteen

Current By-Law
7.03 Persons Turning Sixteen
(b) If Turning Sixteen’s are not accepted for membership, or do not apply for membership, they may continue to reside with the members as Long-Term Guests.

By-Law Committee Recommendation
8.3  Turning Sixteen:
A long-term guest agreement is not necessary for “turning sixteens”. Turning sixteen’s are exempt from credit checks until they apply for a unit.

There is little actual change here, but it clarifies that turning sixteen’s need not be financially independent while they are living in their parent’s unit.

5. Long-Term Guests

Current By-Law
Membership By-Law #20
11 (b) (ii) Turning sixteen’s and long-term guests are exempt from demonstrating a history of financial responsibility until an application is made to be placed on the internal waiting list;

By-Law Committee Recommendation
8.4 (a) Long-Term Guests
We recommend maintaining the current Membership By-Law #20, 11 (b) (ii) by-law wording to say that there is no requirement for a credit check until they apply for a unit.

We are recommending that we continue with our current practice – no credit check for Long Term Guests. (The Long Term Guest is not responsible for the rent. The LTG’s income will be considered if the member is on rent-geared-to-income or subsidy.)

6. Changes in Household Size

Current By-Law
Occupancy By-Law – VI, 31a
Changes in Household Size
(a) If, during the first 36 months of occupancy of a unit, a member ceases to have the household size appropriate for his or her unit, as set out in the Membership Policy, the Co-op may terminate his or her right to occupy the unit by resolution of the Board. After 36 months of occupancy in a particular unit with the correct household size, a Member In Good Standing’s occupancy rights in that unit cannot be terminated because of a change in household size.

By-Law Committee Recommendation
Section 9.4 (Not Meeting Minimum Household Size)
ADD: When this section applies:
This section applies if a member of the household stops occupying a unit and the remaining members in the household do not meet the minimum requirement for the unit.  Section 9.4 does not apply if one of the remaining members has lived in the unit for at least five years.

We are not changing the intent but we are using the simplified language of the model by-law alternative. However we are increasing the occupancy requirement to qualify for remaining in the unit if household size changes from 36 months to 5 years.

This is perhaps the most controversial section of our by-law.  Most coops have a minimum household size that is strictly enforced and members must downsize when they no longer meet the occupancy rule of a minimum of one person per bedroom.  As you know, from the beginning, Woodsworth decided that one person could occupy a two-bedroom unit in the midrise, and people who had lived in Woodsworth for longer than three years could continue to occupy their original unit, even if they fell below the one person per bedroom minimum.

One of the questions we received was about the unfairness of allowing members to remain in their unit when their household has shrunk.

Answer from the committee:  This is a big decision for members.  Some members will feel that, in light of the ongoing housing crisis, we should change our bylaws to enforce the minimum occupancy standards and that the rule of one person per bedroom minimum should be strictly followed.
Other members might think it unfair that a household who has occupied 3 bedroom for twenty years should move if one of the children moves out (the child might move back, an aging parent may move in, or they may simply remain at two persons in a three-bedroom). We did talk about grandparenting existing members, the number of one-bedroom units in the mid-rise, and many other issues and finally came to our recommendation.

7. Occupancy Guidelines

Current By-Law
Membership By-Law #20 Occupancy Guidelines
13. The minimum number of persons in a unit is one per bedroom with the exception of allowing a one person household to occupy a two bedroom unit in the apartment building.

By-Law Committee Recommendation
9.3 Minimum Household Size
The minimum number of persons for each of the co-op’s unit types is:
one-bedroom – 1 person
two-bedroom – 2 persons except a single person may occupy a 2 bedroom unit in the apartment building including Wilton Street
three-bedroom – 3 persons
four-bedroom – 4 persons

No change except an easier to read format. Singletons may continue to move into the mid-rise two-bedroom units, but the clarification is that “apartment building” includes Wilton Street units.

8. Maximum number of persons

Current By-Law
12. The maximum number of persons in a unit is two per bedroom.

By-Law Committee Recommendation
9.3  No maximum household size, except by the City of Toronto by-laws

We are following the law here and the model by-law by getting rid of the concept of “underhousing”. Instead, we will use the City of Toronto by-laws. The CHFC document says that maximum household size “raises moral and human rights issues. Different cultures, different circumstances and personal preferences lead to widely different ideas of how many people can share accommodation.

Attempts to enforce this kind of rule are likely to lead to human rights challenges if the co-op standards are tighter than municipal standards. In addition, enforcement would have to be through the courts, which would be expensive.
On the other hand, almost all municipalities have maximum occupancy rules and there are specific sections of the Residential Tenancies Act that refer to this and will permit the co-op to enforce the rules with less expense.”

9. Termination of Occupancy

Current By-Law
49. Notice Required
A member may terminate occupancy in the Co-op by giving seventy (70) days’ notice, with the seventy day notice period ended on the last day of a calendar month.

By-Law Committee Recommendation
10.2 Ending Membership and Occupancy
60 days’ notice
The amount of notice given must be at least 60 days.

As recommended by the model Occupancy By-Law. The notice requirement is now 60 days under the Co-operative Corporations Act (section 178.1). This will have to replace the 65 days period that many co-ops have used.
There are even special counting rules for February and March in section10.2(c). These are from the Co-operative Corporations Act.

10. Arrears

Current By-Law
Currently, the Arrears By-law (By-law No. 60) defines arrears procedures.

By-Law Committee Recommendation
There is a whole section in the proposed Occupancy by-law and a committee member has been working with the Arrears Committee to ensure the new language works for Woodsworth. See Section 11 in the draft Occupancy By-Law, Dealing with Arrears.

The arrears section of the Occupancy Bylaw reflects current thinking on dealing with arrears when they are a manageable amount. Additionally, housing co-op evictions are handled by the Landlord Tenant Board. And of course, human rights legislation has changed since we drafted our by-law.

11. Director in Arrears

Current By-Law
Currently we don’t have any rule against a director being in arrears, unless they are not adhering to the repayment schedule.
The Organizational By-Law #1 IV # 3 says: 
Qualifications: No person shall be a director of the Cooperative:
(d) if the person is in default under the Occupancy Agreement or any other contractual agreement with the Cooperative;

By-Law Committee Recommendation
11.5  Directors in Arrears
Directors’ arrears policy
If directors are in arrears, it: undermines the co-op’s governance weakens the co-op’s financial management sends the wrong message to members of the co-op and to government.
No director arrears
A director must not owe any money to the co-op other than future payments for a member deposit. A director must have a signed payment agreement for these payments.

We recommend we adopt the wording of the model Occupancy By-Law. The CHFC Guide says: Section 11.5, Directors in Arrears: Experience has shown that co-ops with serious financial problems often have directors with arrears. It seems to be a hallmark of bad management. It is not fair to members who are in good standing and it is very bad for the co-op’s reputation among funders, lenders and anyone else who knows about it.
The policy recommended by CHF Canada is that no directors’ arrears are permitted.

12. Appeals to the members

Current By-Law
52.  (a) If the member or his or her agent or counsel was present at the meeting of the Board, or if the member made a written submission, s/he may appeal the decision terminating his or her occupancy rights by serving on any member of the Board and leaving at the office, within five days of delivery of the notice referred to in paragraph 51 (e), notice setting out the grounds on which s/he appeals.

By-Law Committee Recommendation
15.1 Appeals to Membership  When a Member Can Appeal
A member cannot appeal a board of directors’ eviction decision to the membership if the grounds of termination are:
Domestic violence
An act involving violence
An illegal act, or
An act or failure to act that impairs the safety of others


The by-law committee discussed this at great length over two years.  One of our consensus concerns is that appeals directly to the membership inevitably lead to ugly personal exchanges for all to see and generally stray beyond the key issue at appeal.

The changes in the Co-operative Corporations Act leave it up to each co-op to decide when a membership appeal is available. This has to be stated in the by-laws.
The Landlord Tenant Board  process will involve mediation and a requirement for the co-op to prove the case on its merits. Therefore, internal membership appeals may not be needed to protect members in many situations. We could:
(a) Allow appeal for everything as in present Co-operative Corporations Act.
(b) Allow appeal for everything except arrears as in most pre-1992 Occupancy By-laws.
(c) Allow appeal for everything except arrears, violence, illegal acts, impairing safety.
(d) No appeals to the membership.

The committee recommends C.

13. Member in Good Standing

Current By-Law
The Membership By-law Section 30 mentions Member in Good Standing and it is used in relocations. Section 30. Member in Good Standing.

By-Law Committee Recommendation
We suggest that we jettison the concept of “member in good standing” since it is unenforceable in evictions.

This does not appear in the new model by-laws because it is not enforceable at the Landlord Tenant Board and it may be unevenly enforced.

14. On-Call Members

Current By-Law
Our current by-laws talks about On-Call in two places:

– Organizational By-Law #1 Article IV Directors
3. Qualifications: No person shall be a director of the Cooperative:
(e) if the person is a full-time employee of the Cooperative.
– in the Occupancy By-Law, 7.11: (a) No permanent employee of the Co-op may be a member of the Co-op.

By-Law Committee Recommendation

17.4 (a) Not members
A permanent employee of the co-op cannot be a member of the co-op or live in the household of a member.

(b) Exceptions
Paragraph (a) does not apply to members and members of their households:
*  who are temporarily employed by the co-op if the total employment for all members of the household is not more than two weeks in a year
*  who are on-call committee members if the total on-call payment for all members of the household is for not more than one day a week of on-call on average, effective March 30, 2018 or
*  who are employed by a property management company or another contractor of the co-op if the total employment at the co-op for all members of the household is not more than two days a week on average.

17.4 (c) Serving on board of directors
Members in the first two exceptions can be on the board of directors, but they have to declare conflicts of interest and follow the by-laws, if there is a conflict. Members in the third exception cannot be on the board.


The co-op has grappled with this complicated issue about members doing paid on-call work over the last few years. After much committee discussion, we recommend the adoption of the language in the model by-law. The key point – “total on-call payment for all members of the household is for not more than one day a week of on-call on average”.  However we are recommending giving the Board more time to work on this. We also recommend the model 17.4 (c) about directors doing On-Call.

Canada Revenue says that they are our employees – the personal tax implications has been settled with CRA but there are still questions. What are the implications if they are our employees? The committee e-mailed the Board of Directors asking for a definition of employee in May 2015. We talked about the issues about liability of the co-op and asked about whether there is volunteer insurance or other insurance for these members. If the On Call members worked fewer hours per month, would they be employees and would they be covered by a blanket liability policy? But how many would we need.

We talked about CHFC’s recommendations and their thinking as outlined in the guide to the Occupancy By-Law. We finally decided that the Board needs to get further legal advice to see what are the responsibilities of the co-op to members who do on-call. It is really about the liability of the co-op. We or the Board don’t have the answers at this point to all of the questions about what on-call service we need, how it should be delivered, what our role is if they are employees.

Our next job will be starting to work on a new Organizational By-Law. In the CHFC model, it says that members should not earn more than $100 a month from the co-op. So even when we deal with the Occupancy By-Law we will still face questions about payment for on-call.

But we do know that we don’t currently have enough people in the On-Call group to be able to implement the by-law as recommended by CHFC. We are recommending that the Board be given a year from approval of the by-law to work out the best scenario for Woodsworth.