Trailer Parks (RTA)

Caselaw.Ninja, Riverview Group Publishing 2021 ©
Date Retrieved:	2024-11-23
CLNP Page ID:	857
Page Categories:	[Land Leases (RTA)]
Citation:	Trailer Parks (RTA), CLNP 857, <https://rvt.link/db>, retrieved on 2024-11-23
Editor:	Sharvey
Last Updated:	2024/09/27

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Residential Tenancies Act, 2006, S.O. 2006, c. 17

2 (1) In this Act,

...

“land lease community” means the land on which one or more occupied land lease homes are situate and includes the rental units and the land, structures, services and facilities of which the landlord retains possession and that are intended for the common use and enjoyment of the tenants of the landlord; (“zone résidentielle à baux fonciers”)

“land lease home” means a dwelling, other than a mobile home, that is a permanent structure where the owner of the dwelling leases the land used or intended for use as the site for the dwelling; (“maison à bail foncier”)

...

“mobile home” means a dwelling that is designed to be made mobile and that is being used as a permanent residence; (“maison mobile”)

“mobile home park” means the land on which one or more occupied mobile homes are located and includes the rental units and the land, structures, services and facilities of which the landlord retains possession and that are intended for the common use and enjoyment of the tenants of the landlord; (“parc de maisons mobiles”)

...

“rental unit” means any living accommodation used or intended for use as rented residential premises, and “rental unit” includes,

(a) a site for a mobile home or site on which there is a land lease home used or intended for use as rented residential premises, and

(b) a room in a boarding house, rooming house or lodging house and a unit in a care home; (“logement locatif”)

“residential complex”, except in Part V.1, means,

(a) a building or related group of buildings in which one or more rental units are located,

(b) a mobile home park or land lease community,

(c) a site that is a rental unit,

(d) a care home, and,

includes all common areas and services and facilities available for the use of its residents; (“ensemble d’habitation”)

“residential unit” means any living accommodation used or intended for use as residential premises, and “residential unit” includes,

(a) a site for a mobile home or on which there is a land lease home used or intended for use as a residential premises, and

(b) a room in a boarding house, rooming house or lodging house and a unit in a care home; (“habitation”)

...

3 (1) This Act, except Part V.1, applies with respect to rental units in residential complexes, despite any other Act and despite any agreement or waiver to the contrary. 2013, c. 3, s. 22 (1).

...

5.2 (1) This Act does not apply with respect to a rental unit that is a site on which a land lease home is located, if all of the following requirements are met:

1. The rental unit is owned by an employer and is provided to an employee, or to an employee and the employee’s spouse, in connection with the employee’s employment.

2. The rental unit is subject to a tenancy in respect of which a tenancy agreement is first entered into on or after the day the Protecting Tenants and Strengthening Community Housing Act, 2020 receives Royal Assent between,

i. the employer, as landlord, and the employee, as tenant, or

ii. the employer, as landlord, and the employee and the employee’s spouse, as joint tenants. 2020, c. 16, Sched. 4, s. 1.

(2) The exemption under subsection (1) applies with respect to a rental unit until the tenancy is terminated. 2020, c. 16, Sched. 4, s. 1.

(3) Subsection (2) applies with respect to a rental unit even if,

(a) the employee ceases to be employed before the tenancy is terminated; or

(b) the employee dies before the tenancy is terminated, provided the employee’s spouse is a tenant of the rental unit. 2020, c. 16, Sched. 4, s. 1.

White v. Upper Thames River Conservation Authority, 2022 ONCA 146 (CanLII)

[2] The appellants have long-term leases with the respondent, first entered in 1983. The leases limit occupancy to weekends during the three-month winter period. In other words, for three months out of the year, the appellants are not permitted to reside in their homes Monday through Friday. The leases were amended in 2004 to permit tenants to choose the winter dates when their occupancy limitation runs, but the substance of the limitation remains: the appellants are not permitted to occupy their homes year-round. Occupancy outside the permitted period is expressly stated to be “a violation of the terms of this lease and will result in delivery of Notice of Lease Termination”.

[3] Despite the clear terms of the lease, the respondent has never strictly enforced the occupancy limitation and as a result, many tenants live in their homes year-round. The parties were in the midst of renegotiating their leases and the enforceability of the occupancy limitation became the subject of a dispute. The appellants applied to the Landlord and Tenant Board (the “Board”) for an order that the Residential Tenancies Act, 2006, S.O. 2006, c. 17 applies to their tenancies, and an order requiring the respondent to allow them unfettered access to and occupation of their homes, year-round.

[4] The Board held that the Act applies to the parties’ lease and it followed that the tenants ought to have unrestricted access to the rental units. The Board added that restricting tenants’ access would amount to substantial interference with their reasonable enjoyment of their rental units, in violation of s. 22 of the Act. The Divisional Court allowed the respondent’s appeal, holding that s. 22 does not render illegal provisions landlords and tenants have agreed upon.

[5] The application of the Act to the parties’ lease is no longer contested. The sole issue on appeal is the legality of the occupancy limitation in the lease.

[6] In my view, the occupancy limitation is inconsistent with the Act and as a result is void. I would allow the appeal for the reasons that follow.

...

[17] The Divisional Court’s reasoning begs the question at issue. Voluntary agreement to a provision is irrelevant if that provision is not otherwise permitted. In the absence of specific authorization or prohibition, the legality of occupancy limitations must be determined by consideration of the provisions of the Act as a whole.

[18] This is simply an application of the modern approach to statutory interpretation. The purpose of statutory interpretation is uncontroversial: it is to determine the intention of the legislature. The Supreme Court summarized the modern approach recently in Vavilov, at para. 117:

A court interpreting a statutory provision does so by applying the “modern principle” of statutory interpretation, that is, that the words of a statute must be read “in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament”: Rizzo & Rizzo Shoes Ltd. (Re), 1998 CanLII 837 (SCC), [1998] 1 S.C.R. 27, at para. 21, and Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42, [2002] 2 S.C.R. 559, at para. 26, both quoting E. Driedger, Construction of Statutes (2nd ed. 1983), at p. 87. Parliament and the provincial legislatures have also provided guidance by way of statutory rules that explicitly govern the interpretation of statutes and regulations: see, e.g., Interpretation Act, R.S.C. 1985, c. I-21.

[19] The modern approach to statutory interpretation is now referred to as “text, context, and purpose”: see the helpful discussion by Miller J.A. (dissenting) in R. v. Walsh, 2021 ONCA 43, 154 O.R. (3d) 263, at paras. 133-150. In my view, the text, context, and purpose of the Act confirm that it contemplates only non-temporary, non-conditional, unlimited occupancy arrangements. In short, occupancy limitations in residential leases are not permitted.

Matthews v. Algoma Timberlakes Corporation, 2010 ONCA 468 (CanLII)

[24] The definition of a "rental unit" in s. 2(1) contains two components. First, the unit must be "living accommodation". Second, it must be used or intended for use as "rented residential premises". As I have indicated, s. 3(1) provides that the Act applies despite any term in the lease to the contrary and s. 4 provides that "a provision in a tenancy agreement that is inconsistent with this Act or the regulations is void". Section 202 requires the Board to "ascertain the real substance of the activities" relating to the rental unit and to do so disregarding "the outward form of [the] transaction". Accordingly, a term in the lease providing that a site is not residential nor a rental unit will not have the effect of avoiding the application of the Act, provided that the premises otherwise fit within the statutory definition of a "rental unit".

[25] In this case, the undisputed facts demonstrate that the premises constituted "living accommodation". The lessees' families lived in the cottages. All the cottages contained sleeping and living quarters as well as kitchen facilities. All were equipped with outhouses approved by the public health authority. Families attended at these cottages for varying periods of time at different times of the year. During their stays, the lessees carried on the normal activities of persons living in accommodation. In these circumstances, it seems the cottages unequivocally satisfy the first requirement of being "living accommodation". [page599]

[26] In my view, the second requirement, that the premises be used or intended for use as "rented residential premises", is also satisfied. Certainly, the lessees paid rent to "occupy" the land upon which they constructed their cottages. Thus, they were "rented" premises. In addition, in my view, the premises were clearly "residential" as that term is used in the Act. They certainly were not "commercial". The documentation demonstrates ACR's intention that the "camps" were leased for single-family private use and not as commercial campsite enterprises. "Commercial" tenancies are dealt with separately in the ACR documentation and are governed by different legislative provisions. [See Note 4 below]

[27] However, the Divisional Court was of the view that because the premises were used for recreational purposes, they are not "residential". Yet there is no Recreational Tenancies Act. And the Residential Tenancies Act makes no reference to "recreational" premises as a separate category of living accommodation. Although s. 5 of the Act contains a list of specific exemptions, there is no blanket exemption of, or any reference to, "recreational" properties.

[28] In my view, occupants of residential units are entitled to the protection of the Act, whatever they do inside or outside of their premises during their waking hours. The Act applies whether the occupants spend their days at work or at leisure, whether they live in their accommodation 52 weeks a year or some lesser amount of time, and whether the unit in question is their primary or secondary residence.

[29] If it were otherwise, a person primarily residing elsewhere who rents a city apartment for convenience, as a pied-à-terre, or as any type of secondary residence, would be denied the tenant protections that would be available to his or her neighbour across the hall. As well, Ontario tenants who "reside" in warmer locations as "snowbirds" during the winter months could lose the tenant protections available to them under Ontario law. Moreover, individuals who rent premises in locations such as Collingwood for golf and skiing would be denied the protections provided by the Act because they would be occupying the premises for "recreational" rather than "residential" purposes. In my view, there can be no difference between the [page600] Collingwood residential and "recreational" rental apartment from which the occupant has access to golf and skiing and the ACR residential and "recreational" rental premises from which the occupant has access to fishing and hunting. The recreational attributes of t he particular area do not mean that the rental units are not residential within the meaning of the Act.

Kaiman v. Graham, 2009 ONCA 77 (CanLII)

[9] As stated above, the appellants neither pleaded nor raised the RTA at trial. The question is thus whether the appellants should be allowed to rely on it for the first time on appeal. Since the appellants’ argument goes to the jurisdiction of the Superior Court, it may be raised for the first time on appeal: see W.(V.) v. S.(D.), 1996 CanLII 192 (SCC), [1996] 2 S.C.R. 108, at para. 17.

[17] The appellants rely on s. 3 of the RTA which states that the Act applies “with respect to rental units in residential complexes, despite any other Act and despite any agreement or waiver to the contrary”. They argue that the exception in s. 5(a) of the Act does not apply. That section provides:

5. This Act does not apply with respect to,

(a) living accommodation intended to be provided to the travelling or vacationing public or occupied for a seasonal or temporary period in a hotel, motel or motor hotel, resort, lodge, tourist camp, cottage or cabin establishment, inn, campground, trailer park, tourist home, bed and breakfast vacation establishment or vacation home.

The appellants place particular reliance on the Divisional Court decision in Putnam v. Grand River Conservation Authority (2006), 2006 CanLII 18526 (ON SCDC), 210 O.A.C. 191 which held that year-round cottage properties did not fall within the predecessor to s. 5(a) of the RTA since the properties were not “part of a cottage or cabin establishment” that was analogous to a hotel, motel or the other types of accommodation set out in the definition. Accordingly, the appellants wish us to make a determination on appeal as to the applicability of the RTA or to refer the matter for hearing before the Landlord and Tenant Board.

R. v. Parker v. Yundt et al, 2012 ONSC 244 (CanLII)

[4] The Parkers, purchased a property in April 2010 from Antonio and Irene Tavares (“the Tavareses”) known as Mountain Trout Camp. The property is a recreational site for tents and trailers and also has five cabins. Between 2005 and 2007 the Tavareses sold the five cabins to the Respondents and to a fifth person who is now not a party to the application. Following the purchase of the cabins, the Respondents paid rent to the former owners of the site, the Tavareses.

[5] When the Parkers purchased the campsite from the Tavareses they were aware that the cabins were separately owned by the Respondents, as purchasers of the cabins. Thus, the Parkers were aware of the rents and a lease arrangement with the Respondents when they made the purchase of the campsite.

[6] On or about November 15, 2010 the Parkers provided each of the cabin owners with an invoice for the 2011 rental period (January 1 to December 31, 2011) increasing the rent. There was a significant increase in the rent. The annual site fee was increased from $1,500.00 to $7,000.00 annually.

[7] The Respondents Yundt & Buehlow relies on a lease agreement which was entered into in 2005. The Bartletts entered into their lease agreement in 2006. The Ecsedis rely on an agreement entered into in September 2007. The Barnhums also rely on a lease agreement containing the same terms. All of the Respondents rely on the duration of the lease being “for as long as the cabin is owned by the lessees”.

[8] Following the receipt of the notice to increase the rent, the Bartletts applied to the Landlord and Tenant Board (“LTB”) to determine whether the cabin they owned was within the jurisdiction of the RTA, on January 31, 2011. The LTB determined that the RTA applied and the matter was adjourned to the next available date. In April 21, 2011 the Parkers commenced their application in this court. Their application to this court was amended in May, 2011. There was no appeal launched from the LTB’s decision and interim order that was made.

[22] While in that case the subject property was a rooming house, it is argued that, similarly, the RTA governs the cabins and the campsite on which they are located. The Applicant’s counsel does not agree. In Fraser v. Beach, supra, at para. 14, Juriansz J.A. set out five provisions of the TPA as being of central importance to the issue of jurisdiction. When the legislature enacted the RTA the section of the TPA cited by the Court of Appeal was preserved in the new legislation almost word for word. The five provisions of the RTA that I now consider are the following:

(1) Section 37(1): “A tenancy may be terminated only in accordance with the Act”.

(2) Sections 39(a) and 39(b): “A landlord shall not recover possession of a rental unit subject to a tenancy unless (a) the tenant has vacated or abandoned the unit, or (b) an order of the Board evicting the tenant has authorized the possession.

(3) Section 168(2): “The Board has exclusive jurisdiction to determine all applications under this Act and with respect to all matters in which jurisdiction is conferred on it by this Act.

(4) Section 3(1) of the RTA: “This act apples with respect to rental units in residential complexes, despite any other Act and despite any agreement or waiver to the contrary”; and

(5) Section 3(4) of the RTA: “If a provision of this Act conflicts with a provision of another act, other than the Human Rights Code, the provision of this act applies”.

[41] The Applicants’ counsel referred me to several decisions including Parsons v. Twin Elm Estates Ltd., [2001] O.J. No. 1907, Burton v. Leadway Apartments Ltd., [2002] O.J. No. 3252, In Reference see Residential Tenancies Act (Ontario) (1980), 1980 CanLII 58 (ON CA), 26 O.R. (2d) 609 (C.A.) and 581355 Ontario Ltd. v. Tenants of 80 St. Clair Avenue East (1991), 49 O.A.C. 74 (Div. Ct.). I agree that the RTA does not give substantive powers to the LTB under the Act but rather exclusive jurisdiction to determine all matters and questions arising under the Act, such as whether the leases should be terminated. I find that is the central issue here.

[48] The Court of Appeal in Fraser v. Beach, supra, and the Divisional Court in Canada Trustco Mortgage Co. v. Park (2003), 2003 CanLII 49385 (ON SCDC), 63 O.R. (3d) 789 support the paramountcy of the RTA when the issue is termination of lease.

NOT-18489-15 (Re), 2015 CanLII 24246 (ON LTB)

3. OMC is a seasonal campground with approximately 185 camp sites used primarily during the period of May 15th to October 15th. A majority of the campers leave their trailers at the campground year round. The campers have access to their campers in the winter upon payment of an additional road and hydro fee.

4. There are at least eight permanent residents living on the property. There are few daily campers and most are seasonal users.

5. OMC provides all infrastructure, water filtering, UV and chlorination for lake water, and hydro distribution.

26. As noted in OMC’s submission the Court in Timberlakes looked at the definition of “rental unit” in the Act and determined the premises met the criteria of “living accommodations” and that they be used or was intended to be used as “rented residential premises”. Rent was paid to occupy the land upon which the cottages were built.

27. The Court also found that the cottages were to be occupied continually over time and the rent paid was not seasonal or temporary. The Court further stated “Second, even if it could be found that occupation was for a seasonal or temporary period, the category of premises at issue in this case is quite different from the living accommodation specifically excluded from s. 5(a) of the Act, the accommodation in this case was not akin to the hotel, resort, campground or vacation home temporary lodgings that the legislature intended to exclude from the application of the Act.”

28. In NOT-05746-11 the Member examined the Court’s decision in Timberlakes and the examined the parties’ relationship with reference to Section 202 of the Act. Section 202 directs the Board to “ascertain the real substance of all transactions and activities relating to…a rental unit.”

29. The Member found that in the circumstances the real substance of the parties’ relationship was that of a campground to be occupied by vacationing camper-trailer owners on a seasonal basis.

30. I accept that it appears that for the majority of the occupants of the lots at OMC this determination would apply however I find that the circumstances surrounding BM and CM’s lot is different. The structure on the lot is permanent and can be occupied year round, BM & CM lived there year round for five years, and they have paid an annual amount for the lot. Up until 2001 they only paid additional monies for hydro in the winter season.

31. The decision to not reside in their home year round was made by BM and CM and the reduction in their winter use of their home was based on their personal circumstances and not because the property was for “seasonal” or “temporary” use only. The cessation of their year round occupancy does change the permanent nature of the home. This home is not the modification of a moveable camper-trailer to give it the look of a more permanent structure. This home cannot be easily removed from the lot.

TNL-58688-14 (Re), 2014 CanLII 50077 (ON LTB)

1. The Landlord operates a FNP (the Park).

2. The grounds are spacious and include several bodies of water suitable for swimming, a beach, walking trails, playgrounds, BBQ area, and other recreational amenities.

3. There is also a clubhouse which houses a Laundromat, hot tub, an outdoor swimming pool, saunas, dining room, exercise room and other amenities.

4. The property has three types of accommodation: Rooms, cabins and campsites.

5. There are areas set aside for tent camping.

6. There are also campsites that are serviced with water and electricity or with water, electricity and septic. Sewage disposal facilities are available for those sites that do not have septic service. Although there was no specific evidence at the hearing concerning the number of serviced campsites, it appears from a map of the property put in evidence that there are about 90 serviced campsites. Many, if not all of these sites are occupied by mobile homes.

15. The provisions of the agreement that are relevant to this application are as follows:

a) The parties agree that “the intended use for the specified site is for recreational vacation purposes in a campground or trailer park. The campground or trailer park is designed for seasonal or temporary use only and as such cannot be used as a permanent home address.”

b) The parties agree that “the actual use that is made of the site is to be for seasonal or temporary periods of time only. As well during any use of the specified site by the Occupants, the Occupants shall maintain another permanent residential premise elsewhere that at the Park, that the Occupants have unlimited access to”

c) The parties agree that “the word “trailer” is set out in the agreement shall include RV’s and Park Model Trailers, as defined by the C.S.A. Standards Z. 241”

d) The parties agree that “the words “seasonal or temporary periods” as set out in paragraph [b] above shall include periodical or recurrent use pertaining to the seasons of the year. But it shall not include accommodation that is occupied for 12 months in any given year.”

e) “In addition to the specified site, the Occupant shall have the use in common with other so entitled to all common areas provided without additional charge. This licence shall be automatically renewed solely at the discretion of [the Landlord] from year to year save and except any adjustment in the fees charged, unless terminated by either party, in writing”.

42. The Court rejected the Divisional Courts finding that, because the premises were used for recreational purposes they are not “residential”. In addressing the issue of “recreational” use, the issue of whether the occupation of the unit had to be for 52 weeks of the year, and whether the residence had to be “primary” to attract the protection of the Act, the Court said:

“In my view, occupants of residential units are entitled to the protection of the Act, whatever they do inside or outside of their premises during their waking hours. The Act applies whether the occupants spend their days at work or at leisure, whether they live in their accommodation 52 weeks a year or some lesser amount of time, and whether the unit in question is their primary or secondary residence.”

46. The recreational vehicle (R/V) belonging to PR contains all of the usual amenities of a residence, including a kitchen, bathroom, living/seating area and sleeping area. It is and has been used by PR as his home during all seasons of the year. The R/V is of solid construction made of metal with glass windows having an air of permanence (unlike a tent or tent trailer which are constructed in part or entirely of cloth). The R/V is designed to be mobile, as it has wheels. It is being used by PR as a permanent residence. In keeping with the reasoning in the Algoma decision, I find that the phrase “permanent residence” does not require that the residence be occupied 365 days per year. Rather I find that it means the R/V is used as a long term home, whether on a full time or part time basis, to which the owner has resort whenever he chooses, in the same way as the cottages that were the subject matter of the Algoma decision.

47. I therefore find that PR’s recreational vehicle is a mobile home within the meaning of the Act

54. The “Licence of Occupation” prepared by the Landlord and signed by the parties appears to try to exclude the Act by describing the intended and actual use of the site for “recreational vacation purposes” and for “seasonal or temporary use only”. The clarification in paragraph 4 of the document seems to acknowledge that the site can be used in all seasons of the year on a periodical or recurrent basis, but prohibits occupation for 12 months in any given year.

55. The evidence in this case is that the mobile home sites are accessible and available to their occupants all year round. Thus the mobile home owners can and do use their residences whenever they choose, at any time of the year. The rental fees are paid on an annual basis, and not on a seasonal or temporary basis. PR has lived in his mobile home at the Park during all the seasons from April 2013 including the winter. The mobile home sites are equipped to provide the Occupants with electricity and potable water as well as sewage disposal. The rules concerning landscaping suggest that there is an expectation that the Occupants will decorate the sites to suit their own taste, further evidencing an intention that the Occupants will be on the same site for a long time. The “Licence of Occupation” provides for the automatic renewal from year to year (at the sole discretion of the Landlord), unless terminated by either party in writing. In fact many of the same Occupants have occupied the same site for many years.

56. The Algoma case has made it clear that occupation of a residence for less than 52 weeks per year does not exclude the application of the Act, and that “secondary” as well as “primary” homes are entitled to the protection of the Act.

57. The indicia that led the Court of Appeal in Algoma to determine that the exemption in s.5(a) did not apply are present in this case. I find that the real substance of the transaction in this case is a lease for a mobile home site in a mobile home park.

It is ordered that:

1. The Act applies.

SOT-53732-14-RV (Re), 2015 CanLII 24247 (ON LTB)

19. The leading case with respect to the interpretation of this section is Matthews et al. v. Algoma Timberlakes Corporation 2010 ONCA 468 (CanLII), the facts of which are distinguishable from the case at hand. In Algoma, the initial lease covered a 20 year period; the lessees were required to erect permanent structures for year round use; the structures were in fact used year round, in some cases as second homes.

20. The Landlord submitted the Board’s decision for Leduc v. Glen Echo Park Inc., but not the Superior Court’s decision. Regardless, I did not find the facts in Leduc to be on point as they involved a park with a naturalist philosophy for which membership is required prior to obtaining the right to rent living accommodation. The Member found that the living accommodation bore little resemblance to a residential tenancy.

21. In Putnam v. Grand River Conservation Authority 2006 CanLII 18526 (ON SCDC), the Divisional Court considered the Tribunal’s interpretation of section 3(a) of the Residential Tenancies Acts predecessor, the Tenant Protection Act. The Court found the Tribunal’s interpretation, that living accommodation occupied as temporary or seasonal residence is only exempt if it is part of the named and listed types of accommodation, to be correct. In this case, a campground and a trailer park are part of the named and listed types of accommodation.

22. Foster v. Lewkowicz et al. 1993 CanLII 8610 (ON SC), was submitted for the consideration of factors used in defining a “tourist home” under the Landlord and Tenant Act, which was the predecessor to the predecessor of the Residential Tenancies Act, 2006. In determining whether the premises were exempt, the Court looked at the intention of the parties and the overall nature of the premises, which was to be determined using a predominant purpose test. The Court specifically focussed on the reference in the exemption to “accommodation provided to the travelling and vacationing public”. However, the exemption in the current Act includes the words “or occupied for a seasonal or temporary period”. Accordingly, I do not find this case to be helpful in that it considers wording that is not relied on by the Respondent in this case.

23. In TNL-58688-14 the Board found that the Act applied to a trailer in which the occupant had occupied the site throughout the year. Despite the fact that the parties agreed that “the intended use for the specified site is for recreational vacation purposes” and that “the campground or trailer park is designed for seasonal or temporary use”. The Member looked at the real substance of the transaction and found that “the mobile homes are occupied by their owners during all seasons of the year”.

24. In EAT-00422-09 the Board found the Act applied to permanent structures built for year round use that were the subject of multiyear leases. This case is distinguishable from the facts in the case at hand.

25. Similarly, CET-09245-10 found the Act applied to cabins that were used year round, and “the lease did not restrict when the cabins could be used”. The evidence before the Member was that the cabins had been used periodically by the tenants year round.

26. In CET-05018-10, the Board found that a 5 month term for a tenancy did not mean that the living accommodation was intended to be temporary. However, in this case, the Member also found that the living accommodation was not in a hotel, motel, etc., which would disqualify the Landlord from falling under the exemption pursuant to the Putnam analysis found above. The order did not specifically address the issue of seasonal occupation.

27. In SWT-65538-14 the Board dealt with a mobile unit located in a park for 18 years, during which successive seasonal Licence agreements were entered into each year. The Member found the Act does not apply and distinguished Algoma on the basis that the licences are annual and define the seasonal nature of the contract, the fee is payable only over the season, and a separate storage fee is assessed for off-season storage. This case is the most similar in fact to the case at hand.

28. SWT-68358-14 also deals with a seasonal park in which trailers are placed on sites, they are used during much of the year, and the park is closed during the winter months. In finding that the Act did not apply, the Board rejected the Applicant’s argument that the relationship should be construed as a Landlord and Tenant relationship because it is theoretically possible to reside in the trailer year round.

29. In the case at hand, the site is located in a campground and is therefore a part of the named and listed types of accommodation found in subsection 5(a). The licence is clearly intended to be seasonal as the intent of the parties is that the park may not be used year round as a residence, and it has not been so used. The seasonal nature of the complex is further reinforced by a separate storage contract for the winter months, the inability of the licence holder to gain access in the winter without the permission of the Respondent, and the lack of water service to the site over the winter.

30. Accordingly, I find that the living accommodation is intended to be occupied for a seasonal period in a trailer park and is therefore exempt from the Act.

It is ordered that:

1. Order SOT-53732-14 issued on January 13, 2015 is cancelled and the application filed by the Tenant is dismissed.

EAT-55915-16-IN and EAL-56910-16 (Re), 2016 CanLII 61389 (ON LTB)

39. Subsection 168(2) of the Act states:

The Board has exclusive jurisdiction to determine all applications under this Act and with respect to all matters in which jurisdiction is conferred on it by this Act.

40. I again note that subsection 3(1) of the Act explicitly precludes parties from agreeing to opt out of the obligations of the Act.

41. Here, the Tenant has never been a member of the Association or the Corporation. The parties agree that he was in arrears at the time that the By-law was passed, which occurred before the Corporation was incorporated. Section 3.1 of the By-law requires that Members be in “good standing” with respect to their payment of membership fees; otherwise, pursuant to section 3.8 of the By-law, the membership “lapses and ceases to exist”.

42. Given this, the Tenant was clearly not a co-owner of the Corporation, and all of the Landlord’s arguments about the Tenant having intended to become a member of the Association and in so doing a part-owner of the Corporation and therefore the Tenant was excluded as a “tenant” within the meaning of the Act, are moot.

43. Even if the Tenant had been, or at some point became, a member of the Association or the Corporation, the relationship between the parties would still be one that is covered by the Act.

44. I agree with the Tenant’s lawyer that, looking at the “real substance” of the roles of the parties pursuant to section 202 of the Act, this relationship falls squarely within the jurisdiction of the Act. I note again the Act’s definitions of “tenant” and “landlord”, and that the Landlord expects the Tenant to pay money (“rent”) in exchange for the right to occupy the parcel of land on which the mobile home rests (the “rental unit”).

45. The absence of a lease is not determinative of the nature of the relationship between the parties. I note again, that section 202 of the Act states that the Board:

(a) May disregard the outward form of a transaction or the separate corporate existence of participants; and

(b) May have regard to the pattern of activities relating to the residential complex or the rental unit.

46. These portions of section 202 of the Act are important to the issues before me. The Landlord’s lawyer is urging me to look at the “outward form” of the transactions between the parties, of the “separate corporate existence” of the parties. But if I peel back the “outward form” of what has happened between the parties, and look at the “pattern of activities” relating to the rental unit, I find the Landlord expecting the Tenant to pay rent in exchange for the right to occupy the rental unit.

47. The Landlord’s lawyer urged me to remember that the future of the park is at stake with my determination of jurisdiction. He wanted me to understand how difficult it was for the parties to join together to save the park, and that if the Act applies, the Landlord may not be able to pay its debts, and the park may have to be sold. I am sympathetic to his concern.

48. But the law is clear: Landlords and tenants cannot opt out of the Act. The parties before me are a landlord and a tenant. Therefore, the Act applies.