C70966.FAP.Harvey v. Bingemans Inc. ONCA

Grounds for Appeal

• The hearing judge applied the wrong test to determine whether or not there was a tenancy under the Commericial Tenancies Act, RSO 1990.
• The hearing judge made an overriding and palpable error of fact in finding that the appellant did not have exclusive possession of the campsite known as 268A.
• The hearing judge did not apply the correct test to determine whether the appellant was a trespasser within the meaning of the Tresspass to Property Act, RSO. 1990.

Summary of the Facts

1. In the Affidavit of Shaun David Harvey, at Tab A, the document known as the License to Occupy, it states in part:

i. Page one states in part: “The Owner has agreed to grant a license to the Occupant to use the following site with the services specified:

Site: 268A (the Site) at Bingemans Camping Resort 425 Bingemans Centre Dr, Kitchener, Ontario (the Park)”

ii. Paragraph 22 of the License to Occupy states in part that:

“19. In the event of any default of any of the terms and conditions of this license agreement. and except where otherwise stated, the Owner shall have the following rights:

a) On fourteen days prior written notice of default delivered, or deemed received under the terms of this license. to terminate this license agreement and re-enter upon the above Site and repossess it. [Emphasis Added]

b) To sue for any overdue payments or damages arising out of a breach of this license together with interest. (at the Courts of Justice Act Rate), Legal Costs together with any other costs of any nature or kind which may be incurred in repossessing the Site and collecting overdue payments or damages.

c) To seize any goods or property on the Site subject to any applicable provisions of the law and to sell the same to recover any monies or damages owing.

d) To bar the Occupant, members of their family, guests, visitors or other persons attending at the Occupant's Site or with the Occupant's permission from:

i) Staying past 8:00 p.m. on any night of the aforementioned fourteen (14) days

ii) Attending or participating in any common activities as may be held in the Park.”

iii. Paragraph 22 of the License to Occupy states in part that:

“In the event that this Site shall be repossessed under the terms of this license, any goods including any trailer that the Occupant has left on the Site shall be deemed to be an article as defined by the Repair and Storage Liens Act of Ontario, (hereinafter referred to as "the Act"), and may be removed by the Owner who shall be deemed to be a lien claimant and storer under the Act, to whatever location the Owner deems appropriate and the Owner in such removal and storage will not be responsible for any loss or damage to such goods. The Occupant will be responsible for any storage costs and moving costs incurred, together with any outstanding rent or charges or any other monies due under this agreement and the Owner may recover costs and/or monies owing in accordance with the provisions of the Act”, as well as,

iv. Paragraph 24 of the License to Occupy states:

“The Occupant of the Site shall exercise such care as is required in the maintenance of the Site during the term of his License to ensure that persons entering on the Site and the property brought on the Site by such persons are reasonably safe while on the Site and shall save the Owner harmless from any claims as a result of the failure of the Occupant to do so. This clause is included to exclude and modify the Owner’s liability as described above and in accordance with the exclusion and modification permitted by the Occupiers’ Liability Act, Ontario”

v. The final page of the License to Occupy reads in part:

This Agreement signed the 4^th day of July, 2020, at the city of Kitchener Ontario shall be binding upon the heirs, executors, administrators and permitted assigns of the parties hereto.

2. There is no dispute that,

a. no other person outside the License to Occupy was permitted to use the campsite known as Site 268A.

b. The term of the License to Occupy commenced on July 1, 2020, and ended on October 31, 2020.

c. The Appellant was exclusively responsible for maintaining the Site and was liable to the owner for any damages that arouse under the Occupiers’ Liability Act.

3. As demonstrated under paragraph 22 of the License to Occupy, repossession of the site may be subject to a breach of the terms of the agreement, meaning that unless the terms of the agreement were breached, Bingemans Inc. did not have possession of the site 268A.

4. The length of the agreement was for more than a brief period, such as a few days, or even a few weeks. The length of the agreement imputes lease hold interest in site 268A.

5. The hearing judge misapplied to whom the Trespass to Property Act, R.S.O. 1990, c. T.21 (“TPA”) may be applied. The hearing judge erred in finding that arrest of the appellant was lawful under the TPA.

Legal Analysis

Standard of Review

In Wu v. Adler, 2022 ONSC 188 (CanLII) the court states:

[12] The appellate standard of review is set out in Housen v. Nikolaisen, 2002 SCC 33. On questions of law, the standard is correctness. On questions of fact, the standard is palpable and overriding error. On questions of mixed fact and law, the standard is palpable and overriding error, unless there is an extricable question of law, in which case, the standard of review on that extricable question is correctness.

[13] A palpable and overriding error is an error that can be plainly seen and that affected the result. “The same proposition is sometimes stated as prohibiting an appellate court from reviewing a trial judge’s decision, if there was some evidence upon which he or she could have relied to reach that conclusion”: Housen v. Nikolaisen, 2002 SCC 33, at para. 1.