Co-ops and Don’t Ask/Don’t Tell

In recent years the ideal of a sanctuary city has become more of an urgent concern for me.   It is very important that the city I have come to have a home in is a place that welcomes everyone.  Inherent is this ideal is the concept that by living in Toronto one has equal and equitable access to the services offered by the city.  Whether it is getting a library card or dealing with the police, one’s place of origin shouldn’t matter.  You shouldn’t be asked about where you come from, nor should you have to tell someone about your status.  This is at the core of the No One is Illegal and Don’t Ask Don’t Tell movements.  A bit closer to home for me is the legislated requirements for two tiers of membership in non-profit housing co-operatives, one tier for those with money and a second tier for those without. 

The International Co-operative Alliance has a set of seven principles that have evolved over time, but are firmly rooted in over 150 years of tradition.  Among these principles are:

1st Principle: Voluntary and Open Membership

Co-operatives are voluntary organisations, open to all persons able to use their services and willing to accept the responsibilities of membership, without gender, social, racial, political or religious discrimination.

4th Principle: Autonomy and Independence

Co-operatives are autonomous, self-help organisations controlled by their members. If they enter to agreements with other organisations, including governments, or raise capital from external sources, they do so on terms that ensure democratic control by their members and maintain their co-operative autonomy.

A co-operative should not have barriers to full participation and certainly should not have limitations places on their autonomy and the ability of members to control their co-operative.  Restrictions by government or funders are violations of core co-op principles. In Ontario the Co-operative Corporations Act points in the direction of co-op autonomy. Membership, for example, is not legislated as being restricted to those legally in the country.   Clause 60 reads: 

Membership60.(1) Subject to the provisions of this Act and the articles of the co-operative, membership therein is governed by the by-laws of the co-operative.

Requirements for directors are straight forward, and also make no mention of place of origin.  Sections 87 and 89 deal with who can serve as directors of the corporation:   

Directors to be members87.No person shall be a director of a co-operative unless he or she is a member thereof or a director, officer, shareholder or member of a corporate member thereof, and, where a director or a corporation of which he or she is an officer, director, shareholder or member ceases to be a member, he or she thereupon ceases to be a director. R.S.O. 1990, c. C.35, s. 87.

Age and qualification of directorsAge89.(1) No person under eighteen years of age shall be a director of a co-operative.

Qualifications(2) No undischarged bankrupt or mentally incompetent person shall be a director, and, if a director becomes a bankrupt or a mentally incompetent person, he or she thereupon ceases to be a director.

The act does permit co-operatives to place other restrictions on directors, but even insituations where there are restrictions then tend towards diversity and not exclusion.For example, the Co-operative Housing Federation of Toronto and most of its member co-ops has a clause in its by-laws that reads: 

“A majority of directors must be resident Canadians”.

Citizenship isn’t a requirement—the requirement is a desire to take part as a owner/member in a co-operative initiatives, sharing resources and skillsto meet shared needs.  For those able to pay the full market rates in a non-profit co-operative, it is the Cooperative Corporations Act and the individual co-operative by-laws that provide the framework for determining membership. 

However, for those on low income who are applying for membership in

a housing co-op legal status becomes an issue and a barrier for membership in a housing co-op that does not exist for those able to pay the full market rate.  The Social Housing Reform Act (SHRA), a piece of legislation passed in the dark days of the Harris government, controls among other things access to rent-geared-to-income assistance and makes legal status a barrier to housing.  According to SHRA Regulation 298/01, to get RGI assistance, one is legally required to meet the following immigration/citizenship status, requirements which are not legislatively required of market members:

       7. (1) A household is eligible for rent-geared-to-income assistance if, (a) at least one member of the household is 16 years old or older and is able to live independently; (b) each member of the household meets at least one of the following criteria: (i) the member is a Canadian citizen, (ii) the member has made an application for status as a permanent resident under the Immigration and Refugee Protection Act (Canada), or (iii) the member has made a claim for refugee protection under the Immigration and Refugee Protection Act (Canada);(c)no removal order has become enforceable under the Immigration and Refugee Protection Act (Canada) against any member of the household.

This creates two tiers of membership requirements, which seems to be in contradiction to co-op ideals of voluntary and open membership and co-op autonomy.

It may also be in violation of the Ontario Human Rights Code.   There are no legislative requirements that market members of housing co-ops must be citizens or otherwise have certain legal status in Canada.  Housing co-ops can and do grant membership to those with work permits, student visas and even no clear status—but only to memberswith sufficient income to not need RGI assistance.  Potential co-op members who may be legally in Canada but have low income may be turned away solely because they can’t meet the status requirements for RGI assistance.  This certainly is a denial of clause 2.1 of the Ontario Human Rights Code:

Services1. Every person has a right to equal treatment with respect to services, goods and facilities, without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, marital status, family status or disability. R.S.O. 1990, c. H.19, s. 1; 1999, c. 6, s. 28 (1); 2001, c. 32, s. 27 (1); 2005, c. 5, s. 32 (1).Accommodation2. (1) Every person has a right to equal treatment with respect to the occupancy of accommodation, without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, marital status, family status, disability or the receipt of public assistance. R.S.O. 1990, c. H.19, s. 2 (1); 1999, c. 6, s. 28 (2); 2001, c. 32, s. 27 (1); 2005, c. 5, s. 32 (2).

I do not believe that a non-profit housing co-operative can be true to the co-op principles and have this two tiered access to membership.  I also do not believe that the provinciallegislative barrier to access to affordable housing based on place of origin is anywhere near the spirit of the Ontario Human Rights Code.  Access to affordable housing shouldbe based on need, not place of origin or status in the country.  Membership in housingco-ops should be based on a willingness to embrace the responsibilities of membership,and those who have low income should not be put to a higher degree of screening than those that have sufficient income to pay a market rent.

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2 responses to “Co-ops and Don’t Ask/Don’t Tell

  1. Louis St-Amour

    Interesting article. I would be quite interested to hear the opinions of others on this subject. I’m not sure of the background check requirements for RGI on the co-op’s end. I assume that Housing Connections would handle the preliminaries, such as residency, though the application form’s legal bits.

    I know that as far as a co-op’s membership process, RGI *should not* be a factor, for ethical reasons, as income support should be irrelevant to a member’s willingness to contribute and their past relationships with housing providers. (CHF Canada goes as far as to say that credit checks should not matter unless the problems are housing related.)

    Bringing up the RGI requirements raises some thorny issues, when you consider that the membership approval and RGI unit allocation are considered the same step by the Social Housing Reform Act. Does this citizenship status requirement put any obligation on the co-op to add a background check to the membership process? Should the co-op office (if they have an RGI operating agreement with their Service Manager) perform such checks before passing along member information to a Member Selection committee? (And then not tell the committee if they are RGI) The last sounds probably the most reasonable, within these requirements. That way the committee is still in the dark.

    I would say that the best way to resolve this is to make the applicant responsible for meeting citizenship requirements, and then ignore the issue. If this is legally possible, on the co-op’s part, this might be the fairest path, at least until the SHRA is changed. But member selection and RGI rules have been a hot issue with RGI, and it’s unlikely that will stop any time soon. (*Sigh* It could well be worse…)

    The issue will likely go unresolved until a court examines the actions of a board of directors at some SHRA-compliant co-op and interprets that section of the SHRA against the Human Rights Code. I predict the Code would win, but then, I find the SHRA to be quite poorly written, and so I’m biased against it.

    One other thing, the Co-operative Corporations Act includes the residency restriction quoted above from by-laws:

    First, in the definitions:

    “resident Canadian” means a Canadian citizen or person lawfully admitted to Canada for permanent residence, who is ordinarily resident in Canada; (“résident canadien”)

    And later:

    85. (3) A majority of directors on the board of directors of every co-operative shall be resident Canadians. R.S.O. 1990, c. C.35, s. 85 (3).

    Also, under “Conduct of Business”:

    96. (2) Subject to section 97, no business of a co-operative shall be transacted by its board of directors except at a meeting of directors at which a quorum of the board is present and at which a majority of the directors present are resident Canadians.

    Similar requirements continue:

    97. (1) Where the number of directors of a co-operative is more than six, and if authorized by a by-law, the directors may elect from among their number an executive committee consisting of not fewer than three of whom a majority shall be resident Canadians and may delegate to the executive committee any powers of the board of directors, subject to the restrictions, if any, contained in the by-law or imposed from time to time by the directors.

    97. (3) No business shall be transacted by an executive committee except at a meeting of its members at which a quorum of the executive committee is present and at which a majority of the members present are resident Canadians. R.S.O. 1990, c. C.35, s. 97.

    Other than that, the only “unfair” requirements might be that you can be a member of a co-operative and be trusted enough to rent a unit at 16, but you cannot run for the Board under the Co-operative Corporations Act until you are 18. (I raged at this years ago, when I wanted to be on the Board at 16, after I first joined the co-op.)

    Louis “Not a lawyer, though lately I’ve read more on SHRA and CCA than is healthy” St-Amour,
    Secretary, Board, Harry Sherman Crowe Housing Co-operative.
    My email: http://mailhide.recaptcha.net/d?k=01t8cV1dXb1mpsHOjQ9Oui-A==&c=NYvqgN9BNqigYwZtZBqOxaEEbGMf7zZhKMf3j-f7Y2c=

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  2. Don Area Co-operative adopted a DADT policy in April 2012.

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