Trailer Parks (RTA)

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.