



COURT OF
APPEAL FOR BRITISH COLUMBIA




Citation:



Hassan v. Hunter Hill
  Housing Co-Operative,









2009 BCCA 35




Date: 20090129

Docket: CA036714

Between:

Zahara
Hassan

Appellant

And

Hunter Hill
Housing Co-Operative

Respondent




Before:



The Honourable Madam
  Justice Newbury





The Honourable Madam
  Justice Kirkpatrick





The Honourable Mr. Bauman




Oral Reasons for Judgment








Appellant appearing In Person





L.L. Afonso



Counsel for the Respondent





Place and Date:



Vancouver
, British Columbia






29 January 2009






[1]

NEWBURY, J.A.
: Ms. Hassan seeks to vary an order of
Madam Justice Prowse in chambers, made on January 15, 2009.  She dismissed
Ms. Hassan’s application for leave to appeal and for a declaration of
indigent status.

[2]

Ms. Hassan was seeking
to appeal in turn an order of Mr. Justice Brine dated November 27 of last year,
in which he granted the application of Hunter Hill Housing Co-Operative for an
order of entitlement to vacant possession of a residential unit occupied by Ms.
Hassan and her children since 2001.  Brine J. also dismissed an appeal of
Ms. Hassan from a decision of the Co-operative terminating her
membership.  Under s. 171 of the
Cooperative Association Act
,
S.B.C. 1999, c. 28, any right of a member to possession or occupancy of
residential premises that is dependent on his or her membership in a housing
cooperative, which is the case here, is terminated on the termination of the
membership.

[3]

The termination
decision was made at a duly called meeting of the Co-operative at which Ms.
Hassan spoke.  The Directors of the Co-op subsequently passed a similar
resolution at a meeting where she also spoke.  She was advised of her right
to appeal to the Supreme Court of British Columbia under s. 37(3) of the
Act
,
and did so after obtaining counsel.

[4]

Ms. Hassan did not
appear at the hearing before Brine J.  Proceeding on affidavit evidence,
he found that the rules of natural justice had been met.  That is, Ms.
Hassan had had notice of the hearing, had known the case to be met, had had an
opportunity to meet it and had been advised of her right to appeal.  Brine
J. was satisfied that the Co-operative’s decision to terminate her
membership and to seek vacant possession were “appropriate”. 
He therefore granted the Co-operative the declarations sought, to take effect
January 31, 2009.  I note that s. 172(3) of the
Act
states:

(3) If the court determines that the person's membership was terminated
in accordance with the principles of natural justice, the court must make an
order of possession in favour of the housing cooperative.

[5]

Before Madam Justice
Prowse, Ms. Hassan appeared in person and the Co-operative was
represented.  Ms. Hassan insisted that she had made all of the payments
that she was required to make.  However, this had been contradicted by
affidavit materials filed before Brine J. in the court below.  Madam
Justice Prowse observed that Brine J. had found that in fact, Ms. Hassan had
failed to meet many of those payments and that there was no prospect Ms. Hassan
was to succeed in challenging that finding.

[6]

Madam Justice Prowse
also dealt with an argument that Ms. Hassan had failed to appear in Supreme
Court because she had not had notice of what time she was required to
appear.  There is affidavit evidence on this point, and at the end of the
day, Madam Justice Prowse said that she was satisfied “all proper steps
were taken to ensure that Ms. Hassan had notice of that hearing”.

[7]

Madam Justice Prowse
found “with some concern and some regret”, that there was no valid
ground of appeal on the basis of no notice or on any of the other grounds
advanced by Ms. Hassan.  The proposed appeal was also very fact-specific,
did not turn on an issue of public concern and in Madam Justice Prowse’s
view, it was not in the interest of justice that it proceed.  She declined
to extend the January 31 date, and indicated that if Ms. Hassan intended to
seek a review of her order, she should do so immediately and such a review
should be expedited.

[8]

Before us today, Ms.
Hassan has argued the same points she argued below.  However, in order to
succeed in a review of an order of a judge in chambers, the applicant must show
that the judge was wrong in law in principle or misconceived the facts:
Frew
v. Roberts
(1990), 29 B.C.R. (3d) 34 and
Ward v. Clark
[2001] B.C.J. No. 901.

[9]

I am not persuaded Ms.
Hassan has met this onus.  It was for the Supreme Court judge to find the
facts, which he did, and Madam Justice Prowse found no basis in which Ms.
Hassan would have a realistic chance of showing such findings were clearly
wrong.  We have been shown no reason today to find that there was any real
merit to the proposed appeal or that the appeal should be heard in the interest
of justice.  Rather it appears that as Madam Justice Prowse stated, Ms.
Hassan would be bound to fail on the grounds she is advancing.

[10]

I acknowledge that
being expelled from a housing co-operative will be hard on Ms. Hassan and her
family; however, the Co-operative has given her every opportunity to remedy her
default and clearly has complied with the rules of natural justice.  As I
have indicated, the
Act
is clear that the Court must in the
circumstances make an order for possession.

[11]

I have inquired whether
the Co-operative might consider extending the time somewhat since January 31 is
two days away and I would ask that counsel take that request back to her
client.

[12]

In the result, however,
I would dismiss the application for review.

[13]

KIRKPATRICK, J.A.
I agree.

[14]

BAUMAN, J.A.
: I agree.

[15]

NEWBURY, J.A.
: The application is dismissed.

(discussion with
counsel)

[16]

NEWBURY, J.A.
: Yes, that would be fine.

“The Honourable Madam Justice
Newbury”


