C70966.FAP.Harvey v. Bingemans Inc. ONCA

Overview

The appellant appeals the decision of Harvey v. Bingemans and Waterloo Region Police, 2022 ONSC 3905 (CanLII) made by Justice Gibson J. of the Superior Court of Justice in Kitchener, Ontario heard on March 1, 2022, and decided on June 30, 2022. The core issues brought forth in this appeal are, under the fact set of this case where there is a grant of use for a seasonal camping spot for a recreational trailer, what is the applicable law that governs the use.

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 failed to conduct any meaningful analysis with respect to the facts that would permit him to determine whether or not exclusive possession had been conveyed to the applicant.
• 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

Timeline of Events

In the hearing decision the hearing judge relied on the following findings of fact:

[2] The applicant Shaun Harvey (“the applicant”) works as a paralegal. He purchased a license to occupy a seasonal camping site for his 29-foot Keystone Cougar camping trailer at campsite #268a, Riverside Campgrounds, Bingemans Camping Resort at 425 Bingemans Centre Drive in Kitchener, Ontario in July 2020. The campground is owned by the respondent Bingemans Inc. (“Bingemans”) and managed by the respondent Mark Bingeman.

[3] The applicant signed a “License of Occupation” for the 2020 camping season (“Site License)” on July 4, 2020, that specified a 184-day license for a term commencing May 1, 2020 and expiring on October 31, 2020. The terms specified that the Owner agreed to license the applicant the use of site #268a commencing July 1, 2020, at a total cost of $2,120 plus HST. The applicant received a Seasonal Camper Code of Conduct 2020 (“Code of Conduct”), the Seasonal Camping Rules and Regulations for Summer 2020, with Sign-Off (“Rules and Regulations”) and a License of Occupation between Bingemans and Occupants (“License of Occupation”).

[4] The trailer, which the applicant brought to the campsite, was a temporary living accommodation where the applicant and his family could eat, shower and sleep. It was not the applicant’s permanent address, which was Unit 615, 2969 Kingsway Drive in Kitchener.

[5] The applicant erected a fence around his campsite. This became the source of dispute between the applicant and Bingemans. The fence was some 2 feet high, with metal rebar rods stuck into the ground. The applicant said that it was to keep his young children off the adjacent road through the campsite. The applicant did not seek permission from Bingemans before having the fence built.

[6] On July 26, 2020, Penny Swinston, an employee of Bingemans, spoke with the applicant about the fence. She told him that the fence was not permitted and that it had to be removed. The applicant replied that the fence had been erected for the safety of his two young children, and that it would not be removed. Later that day he sent an email to Bingemans asking for an “accommodation” under the Ontario Human Rights Code. He suggested that the relationship between himself and Bingemans was governed by the Commercial Tenancies Act (“CTA”).

[7] On July 27, 2020, Mr. Harvey agreed to remove the fence. However, on August 1, 2020, as the fence was still in place, the applicant was again asked to remove it that day. At this time the applicant was given permission by Bingemans to place an above-ground fence at the site, which was not affixed to the ground. Mr. Harvey did not remove the affixed rebar fence and, later on August 1, 2020, sent an email to Bingemans stating that he would be “keeping the fence I have for the balance of the season.” The applicant subsequently also proceeded to build a wooden 13’ x 15’ deck at the site, affixed to a trailer frame, which Bingemans considered was also not permitted by the Rules and Regulations.

[8] On August 5, 2020, Mr. Harvey received a notice letter from Bingemans regarding the fence and the deck at the site. He was informed that the fence and deck had to be removed by August 10, 2020, failing which his license to occupy would be terminated.

[9] The applicant responded with emails suggesting that Bingemans was his “commercial landlord” and accordingly their relationship was governed by the CTA. He claimed that the fence was a “human rights accommodation” and that the deck was actually a trailer. He insisted that the fence “remain undisturbed”. Following subsequent correspondence, on August 17, 2020, Bingemans served the applicant with a Notice of Termination of the License of Occupation, with the License of Occupation being terminated effective August 21, 2020.

[10] Mr. Harvey responded to the Notice of Termination, again claiming that he was protected by the CTA and therefore could not be evicted summarily. In the same email he suggested that the “land lease” might fall under the Residential Tenancies Act ,2006 (“RTA”).

[11] On August 22, 2020, the applicant received a Trespass Notice from Bingemans and was also informed that the Waterloo Regional Police Service (“WRPS”) had been given a copy of the Trespass Notice. After receiving this Notice, Mr. Harvey went to his site at the campground.

[12] On Sunday August 23, 2020, the applicant again went to the campsite. After he had been at the site for approximately one hour, he was approached by two police officers of the Waterloo Regional Police Service. They informed him that he was trespassing and would have to leave the property. The applicant says that he informed the police officers that he had a license to occupy and that they had no legal authority to require him to leave. He says that he told them that they could either arrest him or go away. They sought to explain the situation to him. Mr. Harvey told the police officers that they were not going to explain anything to him and they were either going to arrest him or “fuck off”.

[13] At this point, the police officers asked the applicant to leave the site. Mr. Harvey refused and said that he was not going to leave unless they ordered him to do so and told them that they could give him a “trespass notice otherwise you can fuck off.”

[14] As the applicant remained at the site, he was arrested, handcuffed and placed in the back of a police vehicle. He was then served with an Offence Notice for failing to leave the Bingemans’ property when directed pursuant to s. 2(1)(b) of the Trespass to Property Act.

[15] The applicant was then asked if he would leave the park. He indicated that he would, and the handcuffs were removed. The applicant then left the park.

Documents at the Hearing

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.

Findings of the Hearing Judge

In the hearing decision the hearing judge made the following findings that are relevant to the appeal:

[26] There is a difference between a license and a lease. A license is a permission to use a property. It does not convey a leasehold interest in the land. With a license, one becomes a licensee; with a lease, one becomes a tenant. There are similarities between the rights of tenants and licensees, but they are not the same. The concepts cannot be used interchangeably.

[27] A licensee is permitted to enter onto lands, with the permission or consent of the owner. A license gives the licensee the right to do something on the owner’s property, which the owner could otherwise prevent.

[28] Generally, a lease exists where the owner agrees to turn over exclusive possession of the property to another for a period of time. The conveyance of exclusive possession is an essential characteristic of a lease. A license, on the other hand, is an agreement that gives the licensee permission to use the land only at the owner’s discretion. A license is a revocable privilege.

[29] In interpreting a contract, one looks first to the intentions of the parties at the time the contract was agreed. The intended use for the campground site in this matter was stated as being for “seasonal recreation and vacation purposes only.” The license documents confirmed that the campground was designed and intended for seasonal or temporary campground and recreational use only. The applicant was required to maintain a permanent residential premises at another location, which he did.

[30] The applicant contends that the rental of a seasonal plot of land to park a recreational vehicle is clearly a case where an owner is permitting the occupation of the premises in question, and is thus a tenant as defined by s.1 of the CTA. Therefore, he submits, the CTA governs the relationship between the applicant and the respondent.

[31] This is a reductio ad absurdum argument. More is required to establish a tenancy than merely permission to occupy land for a given period. The necessary attributes of a lease are not present here. There was no conveyance of exclusive possession.

[32] Throughout the various license documents in this case, including the License of Occupation, Bingemans granted the applicant a license to use the site at the campground until October 31, 2020. There is nowhere in any of the license documents a mention or suggestion that the applicant was a tenant or that the contract between Bingemans and the applicant was a lease. The license documents had been read and understood by Mr. Harvey. He agreed to abide by the terms of the license documents, and he acknowledged that he was a licensee on the campground. This only changed once he had erected the fence and refused to take it down.

[33] The license documents provided that any breach of the Rules of the Park by the Occupant shall be deemed to be a breach of the license and the license may be immediately terminated at the option of the Owner. They provided that anyone breaching the Code will be asked to leave the campground immediately, and that the License of Occupation would be cancelled immediately and there would be no refunds.

Legal Analysis

Standard of Review

The questions raised on appeal, in this case, are ones of questions of overriding and palpable errors of fact, which is in an error of law; as well as questions of statutory interpretation and therefore errors in law. 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.

Statatory Interpretation

There are two statutes under examination for this appeal, the Commercial Tenancies Act, R.S.O. 1990, c. L.7, as well as the Trespass to Property Act, R.S.O. 1990, c. T.21. The questions that arise are not simply ones of meaning within the Act(s), but the applicability of the Act(s) themselves based on the meanings found within the definition sections of each Act.

As we explore the application of the CTA with respect to the facts of this case it is important to keep in mind the core principles of Statutory interpretation. We first look to the Interpretation Act, R.S.O. 1990, c. I.11, specifically at paragraphs 10 and 17 which state:

10. Every Act shall be deemed to be remedial, whether its immediate purport is to direct the doing of anything that the Legislature deems to be for the public good or to prevent or punish the doing of any thing that it deems to be contrary to the public good, and shall accordingly receive such fair, large and liberal construction and interpretation as will best ensure the attainment of the object of the Act according to its true intent, meaning and spirit.

...

17. The repeal or amendment of an Act shall be deemed not to be or to involve any declaration as to the previous state of the law.

The concept of remedial in the most literal sense means, to provide for a remedy. In order to approach how we are to understand the meaning or words, phrases, or the use of grammar within statutory frameworks we look to the leading authority on statutory interpretation Rizzo & Rizzo Shoes Ltd. (Re), 1998 CanLII 837 (SCC), (1998) 1 SCR 27 states as follows:

21 Although much has been written about the interpretation of legislation (see, e.g., Ruth Sullivan, Statutory Interpretation (1997); Ruth Sullivan, Driedger on the Construction of Statutes (3rd ed. 1994) (hereinafter “Construction of Statutes”); Pierre-André Côté, The Interpretation of Legislation in Canada (2nd ed. 1991)), Elmer Driedger in Construction of Statutes (2nd ed. 1983) best encapsulates the approach upon which I prefer to rely. He recognizes that statutory interpretation cannot be founded on the wording of the legislation alone. At p. 87 he states:

Today there is only one principle or approach, namely, the words of an Act are to 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.

Recent cases which have cited the above passage with approval include: R. v. Hydro-Québec, 1997 CanLII 318 (SCC), (1997) 3 S.C.R. 213; Royal Bank of Canada v. Sparrow Electric Corp., 1997 CanLII 377 (SCC), (1997) 1 S.C.R. 411; Verdun v. Toronto-Dominion Bank, 1996 CanLII 186 (SCC), (1996) 3 S.C.R. 550; Friesen v. Canada, 1995 CanLII 62 (SCC), (1995) 3 S.C.R. 103.

...

27 In my opinion, the consequences or effects which result from the Court of Appeal's interpretation of ss. 40 and 40a of the ESA are incompatible with both the object of the Act and with the object of the termination and severance pay provisions themselves. It is a well established principle of statutory interpretation that the legislature does not intend to produce absurd consequences. According to Côté, supra, an interpretation can be considered absurd if it leads to ridiculous or frivolous consequences, if it is extremely unreasonable or inequitable, if it is illogical or incoherent, or if it is incompatible with other provisions or with the object of the legislative enactment (at pp. 378-80). Sullivan echoes these comments noting that a label of absurdity can be attached to interpretations which defeat the purpose of a statute or render some aspect of it pointless or futile (Sullivan, Construction of Statutes, supra, at p. 88).

More than just looking at the construction of a statute, we have to consider the principles by which a given set of facts fall within the jurisdiction of a given statutory framework. In Waito v. La Cité Collégiale and Ontario Public Service Employees Union [1998] OLRB Rep July/August 636 as cited in George Brown College v Ontario Public Service Employees Union, 2015 CanLII 78722 (ON LRB) as paragraph 5, "...It is trite law that the parties cannot contract out of a statute...", the bare position of the application is that, if a given set of facts falls within the statutory framework of a given statute, then that statute applies. When analyzing the facts of a given case it is the substance of the subject matter that prevails, not the form or language used by the participants. I understand that I have used vague language here but I will expand on this concept more as I explore the application of the Commercial Tenancies Act, R.S.O. 1990, c. L.7, as well as the Trespass to Property Act, R.S.O. 1990, c. T.21.

There are two other statutory interpretation principles that are important to consider within the context of Rizzo & Rizzo Shoes Ltd. (Re), 1998 CanLII 837 (SCC), (1998) 1 SCR 27, in Hills v. Canada (Attorney General), 1988 CanLII 67 (SCC) the Supreme Court of Canada states:

106. Furthermore, the interpretation suggested by the appellants would deprive the word "financing" in s. 44(2)(a) of its meaning. The word would then have little or no practical effect. There will be very few cases indeed where employees who are not themselves on strike will contribute voluntarily to a strike fund in order to support a particular labour dispute. In reading a statute it must be "assumed that each term, each sentence and each paragraph have been deliberately drafted with a specific result in mind. Parliament chooses its words carefully: it does not speak gratuitously" (P.‑A. Côté, The Interpretation of Legislation in Canada (1984), at p. 210).

Taking what is being said in Rizzo & Rizzo Shoes Ltd. (Re), 1998 CanLII 837 (SCC), (1998) 1 SCR 27 through Côté, the Supreme Court of Canada has clearly stated that an absurd interpretation whereby the interpretation leads to:

a) ridiculous or frivolous consequences,

b) extremely unreasonable or inequitable,

c) illogical or incoherent outcomes,

d) incompatible with other provisions or with the object of the legislative enactment, and/or

e) interpretations which defeat the purpose of a statute or render some aspect of it pointless or futile

An Examination of the Hearing Judges Findings

The trial judge states in paragraph 28 of the decision that:

[28] Generally, a lease exists where the owner agrees to turn over exclusive possession of the property to another for a period of time. The conveyance of exclusive possession is an essential characteristic of a lease. A license, on the other hand, is an agreement that gives the licensee permission to use the land only at the owner’s discretion. A license is a revocable privilege.

The core issue to be understood is the meaning of the phrase the conveyance of exclusive possession. The concept of exclusive possession was explained in Gottardo Properties (Dome) Inc. v. Toronto (City of), 1998 CanLII 6184 (ON CA), at paragraphs 31 - 33 the court states:

[31] The licensees suggested that their occupancy of the SkyBoxes was too transient to be assessable. I would not give effect to this argument. Whether occupancy is transient or permanent depends on the context. Realistically the SkyBoxes are used only during sports and other entertainment events at the SkyDome. In that context the licensees' occupancy of the boxes is sufficiently permanent to be assessable.

[32] A second and important qualification on assessable occupancy or use turns on the concept of exclusivity. Although the requirement of exclusivity permeates the caselaw there have been few judicial explanations of the concept. In my view, the explanations that have been offered are not entirely satisfactory because they do not determine assessability when there is simultaneous occupancy. One explanation suggests that the exclusivity required is not absolute exclusivity but is related to the purpose of the occupancy or use. The occupancy or use must be sufficiently exclusive to permit the occupant to carry out the purpose for which it acquired an interest in the land. As Krever J. observed in Saga, supra, at p.78:

It is not difficult to discern in the case law the need for the exclusiveness of the occupation or use to be related to the purpose for which the land is occupied or used ...

[33] Similarly, Widdicombe et al., Ryde on Rating 13th ed. (1976), a leading English text on assessment states at p. 27: "that one of the ingredients of rateable occupation is that the occupation must be exclusive for the particular purposes of the possessor. ... Occupation is exclusive if the occupier can exclude all other persons from using the land in the same way as he does."

Who is a Tenant

The classification of a landlord and tenant relationship, as opposed to other types of contractual relationships such as licensee/licensor, bailee/bailor, or storage provider/storer, is necessary to use the correct legal framework when defining the rights and obligations of parties to a dispute.

The Commercial Tenancies Act, R.S.O. 1990, c. L.7 defines a landlord and tenant as follows:

1 In this Act,

...

“landlord” includes a person who is lessor, owner, the person giving or permitting the occupation of the premises in question, and these persons’ heirs and assigns and legal representatives, and in Parts II and III also includes the person entitled to possession of the premises; (“locateur”)

...

“tenant” includes a person who is lessee, occupant, sub-tenant, under-tenant, and the person’s assigns and legal representatives. (“locataire”)

2 This Act does not apply to tenancies and tenancy agreements to which the Residential Tenancies Act, 2006 applies. 1997, c. 24, s. 213 (3); 2006, c. 17, s. 247.

2.1 This Act does not apply with respect to a property in which the Crown in right of Ontario has an interest if one of the following circumstances applies in respect of the property:

1. The property was forfeited to the Crown in right of Ontario under any Ontario statute or the Criminal Code (Canada).

2. Possession of the property has been or may be taken in the name of the Crown in right of Ontario under the Escheats Act, 2015.

3. The property is forfeited corporate property to which the Forfeited Corporate Property Act, 2015 applies. 2015, c. 38, Sched. 7, s. 46.

3 The relation of landlord and tenant does not depend on tenure, and a reversion in the lessor is not necessary in order to create the relation of landlord and tenant, or to make applicable the incidents by law belonging to that relation; nor is it necessary, in order to give a landlord the right of distress, that there is an agreement for that purpose between the parties. R.S.O. 1990, c. L.7, s. 3.

...

Tenant v. Licensee at Commonlaw

Starting as early as 1916 the Court of Appeal for Ontario started in Naegele v. Oke, 1916 CanLII 577 (ON CA), starting at page 504:

Neither can the arrangement be construed to be a lease, though the parties so characterise it, for it is of the essence of a lease that the lessee acquire the exclusive possession of the leased premises: Watkins v. Milton-next-Gravesend Overseers (1868), L.R. 3 Q.B. 350; Glenwood Lumber Co. v. Phillips, [1904] A.C. 405. No exclusive possession of any part of Halliday's lands was acquired by Naegele.

...

The written agreement of September, 1911, is, I think, to be construed as relating to the existing ram and pipes and to their then use for supplying water to lot 13. The evidence shews clearly that it was drawn to confirm and continue that which had been in existence and in actual use under an oral agreement for seven or eight Years, and was not a general right to take water. That which the plaintiff Naegele acquired under his agreement with the Hallidays was, therefore, I think, a license personal to himself, good for 49 years, subject to earlier determination by his death, or because he was no longer in occupation of the Naegele farm, so as to enable him to enjoy the benefits of the license.

No estate in the lands of Halliday (or Oke) was acquired by Naegele. The license does not include " assigns," and so "was not transferable.

At the time this action was instituted, Francis Naegele had sold the lands to which the hydraulic ram conveyed the water, and Pitblado, the purchaser, was in possession, so that, on the date when the writ was issued, he (Francis) had no rights capable of enforcement by the Court.

As Naegele's interest amounts only to a personal license by his grantors and not to any estate or interest in the lands of his grantors, I do not think that Oke was in any way bound (even with notice) by the license granted by his predecessor in title. The right was a personal right given by the Hallidays to Naegele. Not being an interest in the lands, Oke on his purchase took the land clear of any right or license.

...

Taking a look at Campbell v. 1493951 Ontario Inc., 2020 ONSC 4029 (CanLII) we see at paragraph 11 that:

[11] An agreement will constitute a lease if it grants, and was intended to grant, exclusive possession of the premises to the occupant. I am satisfied that the agreement between Mr. Campbell and Tri-Echo was a sub-lease.

In MacKinnon Estate v. MacKinnon, 2010 ONCA 170 (CanLII) the courts addressed the important differences between a tenant and a licensee. Looking at paragraphs 46 to 49 the court states:

[46] In the end, as I see it, this case turns on the first of those questions, namely, whether Duke and Fanny occupied the property as tenants at will. The answer to that question lies in the nature of the relationship that existed between Duke and his sisters, Mercy and Flora, under the original arrangement by which Duke occupied the property and thereafter, the nature of the relationship that existed between Fanny and her sons, Charles and Warren, under the arrangement by which Fanny occupied the property.

[47] Did Duke and Fanny occupy the property as tenants at will or as licensees? The distinction between the two legal concepts is important in possessory title claims because a tenancy at will creates an estate or interest in the land, whereas a licence to use the land does not, although it may give rise to contractual rights (see Street v. Mountford, [1985] 2 All E.R. 289 at 291 and Errington at p. 154).

[48] For present purposes, s. 5(7) of the Act only comes into play if Duke and Fanny occupied the property as tenants at will. The right of recovery contemplated by that provision carries with it the notion that either the person or persons seeking recovery, or their predecessors, have conveyed an estate or interest in the land. If no such estate has passed, as is the case where the property is occupied pursuant to a licence, there is nothing to be reclaimed.

[49] What then is a tenant at will and what distinguishes a tenancy from a licensee? In Ocean Harvesters, at p. 686 Dickson J. explained that “[A] tenancy at will is created when one person permits another to occupy lands on the agreement, express or implied, that the tenancy is determinable at the will of either”. He further observed at p. 687 that “[E]exclusive possession by the tenant is essential to the demise and the statute will not bar the owner unless the owner is out of possession”.

[50] As for the distinction between a tenant and licensee, at pp. 687-88 Dickson J. adopted as correct the following statement of law expressed by Windeyer J. in Radiach at p. 222:

What then is the fundamental right which a tenant has that distinguishes his position from that of a licensee? It is an interest in land as distinct from a personal permission to enter the land and use it for some stipulated purpose or purposes. And how is it to be ascertained whether such an interest in land has been given? By seeing whether the grantee was given a legal right of exclusive possession of the land for a term or from year to year or for a life or lives. If he was, he is a tenant. [Emphasis in original.]

Other considerations are also found in Rahimi v. Regional Assessment Commissioner, Region No. 9, 1997 CanLII 12097 (ON SC), in it the court states:

Tenancy or licence

Notwithstanding the applicants' submission that I should expound the words "rented" or "leased" in their grammatical and ordinary sense, counsel referred me to no fewer than 15 legal authorities to assist the court with the interpretation of "leased" and several authoritative dictionary definitions and judicial pronouncements on the meaning of "rented". In my view, I need go no further on the question of tenancy than the decision of the House of Lords in Street v. Mountford, [1985] A.C. 809, [1985] 2 All E.R. 289 (H.L.), which establishes the test for a tenancy at common law. The hallmarks of a tenancy are exclusive possession for a term at a rent. But, as I read this case, the court there determined that if the agreement confers on the occupier exclusive possession, this is prima facie a grant of an interest in land. The question to be asked and answered is what is the fundamental right that the occupier has secured? The House of Lords adopted at p. 827 the summary of the issue as stated in a decision of the Australian High Court in Radaich v. Smith (1959), 101 C.L.R. 209 at p. 222:

What then is the fundamental right which a tenant has that distinguishes his position from that of a licensee? It is an interest in land as distinct from a personal permission to enter the land and use it for some stipulated purpose or purposes. And how is it to be ascertained whether such an interest in land has been given? By seeing whether the grantee was given a legal right of exclusive possession of the land for a term. If he was, he is a tenant. And he cannot be other than a tenant, because a legal right of exclusive possession is a tenancy and the creation of such a right is a demise. A reservation to the landlord, either by contract or statute, of a limited right of entry, as for example to view or repair, is, of course not inconsistent with the grant of exclusive possession. Subject to such reservations, a tenant for a term or from year to year or for a life or lives can exclude his landlord as well as strangers from the demised premises . . .

In my view, Street v. Mountford stands for the proposition that, while the parties may call it otherwise, the grant of exclusive possession is the singular distinguishing feature between a licence and a lease. It is true that exclusive possession is not decisive. The court may well find exceptional circumstances which, notwithstanding exclusive possession, negative an intention to create the legal relationship of landlord and tenant: Errington v. Errington, [1952] 1 K.B. 290, [1952] 1 All E.R. 149 (C.A.); Booker v. Palmer, [1942] 2 All E.R. 674, 87 Sol. Jo. 30 (C.A.); Cobb v. Lane, [1952] 1 All E.R. 1199, [1952] 1 T.L.R. 1037 (C.A.). These cases are explained by Denning L.J. in Facchini v. Bryson, [1952] 1 T.L.R. 1386 at pp. 1389-90, 96 Sol. Jo. 395 (C.A.), as follows:

In all the cases where an occupier has been held to be a licensee there has been something in the circumstances, such as a family arrangement, an act of friendship or generosity, or such like to negative any intention to create a tenancy . . .

Further analysis between tenant and licensee is found in Keith Whitney Homes Society v. Payne, 1992 CanLII 7691 (ON SC):

The residents were required to sign a licensing agreement. The licensing agreement required the resident to pay rent monthly according to his or her financial capability and provided that if the rent was not paid on time this was deemed to be notice by the resident that he or she intended to vacate the premises. The agreement also contained rules of conduct.

...

I accordingly conclude that the applicant's premises are not residential premises within the definition of the Landlord and Tenant Act.

The second issue

The next issue that I must determine is whether the right of occupation given to Mr. Payne is in the nature of a licence or of a tenancy.

The law on the second issue

I have been referred to Donald Lamont's helpful work, Residential Tenancies , 4th ed. (Toronto: Carswell, 1983) where the author discusses at pp. 14-15 the distinction between the relationship of landlord and tenant on the one hand and licensor and licensee on the other. It is suggested that in considering this problem I must have regard to more than whether the resident has exclusive possession of the premises. In this case there is no question that the respondent has exclusive possession of his bedroom subject to the applicant's right to inspect on an annual basis. However, I must also consider whether the applicant is subject to rules restricting his use of the premises and, more fundamentally, the intention of the parties as expressed in the agreement which they have made.

In the case before me, the agreement between the parties which is to be found at Exhibit A to the affidavit of the respondent filed under Tab 8 of the application record is very much more than a lease. As previously noted, it provides for building rules and a host of other regulations, including an extensive section on conflict and dispute resolution.

I conclude that the agreement between the parties was intended to be an agreement for far more than the use by Mr. Payne of a designated room within the applicant's premises. It was an agreement whereby Mr. Payne would be admitted to a community, expected to participate in the decisions of the community and to be governed by its rules. To that extent the applicant and the respondent intended to create an agreement that was personal in nature.

...

The applicant has referred me to the decision of Doyle Co. Ct. J. in Maxwell v. Brown (1982), 1982 CanLII 2161 (ON SC), 35 O.R. (2d) 770 (Ct. Ct.) and the authorities and cases reviewed by him in that decision.

That case concerned whether the Act applied to the relationship between the occupant of a room in a rooming house and the owner of the house. The learned judge relied upon decisions of Lord Denning M.R. in Abbeyfield (Harpenden) Society Ltd. v. Woods , [1968] 1 All E.R. 325, [1968] 1 W.L.R. 374 (C.A.) and Marchant v. Charters , [1977] 3 All E.R. 918, [1977] 1 W.L.R. 1181 (C.A.), to support his conclusion that the occupant in the case before him did not have a sufficient stake in his room to bring him within the Act and was a mere licensee.

The troublesome question of tenancy or licence was reviewed thoroughly by the House of Lords in the recent case of Street v. Mountford, [1985] 2 All E.R. 289, [1985] 2 W.L.R. 877. Lord Templeman, with whose opinion the other members of the panel concurred, suggest that the decisions in Abbeyfield and Marchant were sustainable on the grounds that the occupier was a lodger and did not enjoy exclusive possession. At p. 299 All E.R. His Lordship said:

But in my opinion, in order to ascertain the nature and quality of the occupancy and to see whether the occupier has or has not a stake in the room or only permission for himself personally to occupy, the court must decide whether on its true construction the agreement confers on the occupier exclusive possession. If exclusive possession at a rent for a term does not constitute a tenancy then the distinction between a contractual tenancy and a contractual licence of land becomes wholly unidentifiable.

In dealing with the suggestion that it is the intention of the parties that is to be determined, His Lordship said at p. 300:

My Lords, the only intention which is relevant is the intention demonstrated by the agreement to grant exclusive possession for a term at a rent.

His Lordship was of the opinion that a tenancy arose whenever there was a grant of exclusive possession for a fixed or periodic term at a stated rent.

It was not suggested by the applicant that the respondent was a roomer. He was given exclusive possession of his room, and, together with other members of his "apartment", the kitchen, bathroom and living room, for so long as he paid the stipulated monthly rent.

It is clear that the parties cannot turn a tenancy into a licence merely by calling it one.

In this case, the parties called the agreement a licence, and it contained provisions not found in the usual form of lease. But it did give the respondent exclusive possession of accommodation for a term in return for rent, and applying the test in Street v. Mountford, supra, I find the respondent to be a tenant, and the relationship between the parties to be that of landlord and tenant.

I am prepared to hear submissions as to costs, but in the absence of an appointment being taken out for that purpose within ten days, costs shall be to the applicant.

Order accordingly.

• Hotel becoming a residential tenancy by analogy.
• Principle, not a brief or transient period of time.

What is Exclusive Possession

The concept of exclusive possession was explained in Gottardo Properties (Dome) Inc. v. Toronto (City of), 1998 CanLII 6184 (ON CA), at paragraphs 31 - 33 the court states:

[31] The licensees suggested that their occupancy of the SkyBoxes was too transient to be assessable. I would not give effect to this argument. Whether occupancy is transient or permanent depends on the context. Realistically the SkyBoxes are used only during sports and other entertainment events at the SkyDome. In that context the licensees' occupancy of the boxes is sufficiently permanent to be assessable.

[32] A second and important qualification on assessable occupancy or use turns on the concept of exclusivity. Although the requirement of exclusivity permeates the caselaw there have been few judicial explanations of the concept. In my view, the explanations that have been offered are not entirely satisfactory because they do not determine assessability when there is simultaneous occupancy. One explanation suggests that the exclusivity required is not absolute exclusivity but is related to the purpose of the occupancy or use. The occupancy or use must be sufficiently exclusive to permit the occupant to carry out the purpose for which it acquired an interest in the land. As Krever J. observed in Saga, supra, at p.78:

It is not difficult to discern in the case law the need for the exclusiveness of the occupation or use to be related to the purpose for which the land is occupied or used ...

[33] Similarly, Widdicombe et al., Ryde on Rating 13th ed. (1976), a leading English text on assessment states at p. 27: "that one of the ingredients of rateable occupation is that the occupation must be exclusive for the particular purposes of the possessor. ... Occupation is exclusive if the occupier can exclude all other persons from using the land in the same way as he does."

Further taking at look at Razor Management Inc. v. Municipal Property Assessment Corporation, 2018 ONSC 3042 (CanLII) the court states in part:

[15] In determining a landlord and tenant relationship, the principles set out in Exchange Corp. Canada Inc. v. Mississauga (City), [2014] O.J. No. 694, 2014 ONCA 113, 2014 CarswellOnt 1526 ("Exchange Corp.") are instructive. In that case, at para. 22, the court cites British American Oil Co. v. DePass, 1959 CanLII 125 (ON CA), [1960] O.R. 71, [1959] O.J. No. 710 (C.A.) for the principle that whether an agreement creates the relationship of landlord and tenant or merely that of licensor and licensee will depend on the intention of the parties as ascertained by a review of the document.

[16] The Divisional Court in the Exchange Corp. case identified the following elements in distinguishing a tenancy from a licence agreement: (i) the creation or transmission of an estate in the tenant and a transfer of control of the premises to the tenant (at para. 9); (ii) exclusive possession granted to the tenant in relation to the purpose for which occupation is intended; and (iii) restrictions imposed on the tenant to the extent that they undermine the exclusivity of possession (at para. 23).

[17] For the reasons that follow, I find that RMI is a tenant within the extended meaning of the definition of tenant in the statute. Consequently, the licensed land is liable to assessment and taxation.

...

[20] Regarding the licence agreement between the parties, RMI submits that the agreement is referred to as a "licence" agreement, not a lease, the parties are referred to throughout the agreement as the "licensor" and the "licensee", and there is a prohibition against an interpretation of the agreement or any clause in a way that creates a different relationship between the parties. However, in a document pre-dating the licence agreement, dated October 26, 2011, which sets out recommendations for a shared use agreement between the parties, reference is made to a "possible Five Year lease renewal". The nature of the relationship created by the instrument under examination depends on the substance of the instrument and not its form or the form of the expressions used in it: Chatham (City) v. Raleigh (Township), 1964 CanLII 131 (ON SC), [1965] 1 O.R. 168, [1964] O.J. No. 816 (H.C.J.) ("Chatham (City)").

...

[23] As noted, "tenant" for the purposes of the Assessment Act, includes an "occupant" and the person in possession other than the owner. In Mount Sinai Hospital v. Municipal Property Assessment Corp., [2003] O.J. 4295, [2003] O.T.C. 970, 126 A.C.W.S. (3d) 553 (S.C.J.), at para. 9, Karakatsanis J. set out the essential elements for rateable occupation, namely, (i) actual occupation; [page395] (ii) exclusivity for the particular purposes of the possessor; (iii) value or benefit to the possessor; and (iv) permanence (citing David Widdicombe, et al., Ryde on Rating, 13th ed. (London, Butterworths, 1976), at 26-27).

...

[35] In Gottardo, Laskin J.A. held, at para. 29, that mere transient use is not assessable. There must be some degree of permanence in the usage. I find that both parties meet the permanence test. The TDSB owns the licensed land on which the sports facility is situated. On that land it operates Monarch Park Public School and no evidence was led to suggest that it will not be operating this secondary school on these premises for the foreseeable future.

[36] The initial term of the licence granted to RMI, being 21 years less two days, is of considerable duration. RMI also has [page398] an office and personnel on the licensed land, who, according to the sworn evidence of Mr. Raizenne, are there all day, every day.

Who is a Commercial Tenant

The Residential Tenancies Act, 2006 ("RTA") defines landlords and tenants within the residential context. The RTA outlines certain exceptions for housing or residential Tenancies that do not fall within the RTA. One of those exceptions is found under section 5 (i) which states:

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;

...

(i) living accommodation whose occupant or occupants are required to share a bathroom or kitchen facility with the owner, the owner’s spouse, child or parent or the spouse’s child or parent, and where the owner, spouse, child or parent lives in the building in which the living accommodation is located;

The Commercial Tenancies Act, R.S.O. 1990, c. L.7 defines a landlord and tenant as follows:

1 In this Act,

...

“landlord” includes a person who is lessor, owner, the person giving or permitting the occupation of the premises in question, and these persons’ heirs and assigns and legal representatives, and in Parts II and III also includes the person entitled to possession of the premises; (“locateur”)

...

“tenant” includes a person who is lessee, occupant, sub-tenant, under-tenant, and the person’s assigns and legal representatives. (“locataire”)

2 This Act does not apply to tenancies and tenancy agreements to which the Residential Tenancies Act, 2006 applies. 1997, c. 24, s. 213 (3); 2006, c. 17, s. 247.

2.1 This Act does not apply with respect to a property in which the Crown in right of Ontario has an interest if one of the following circumstances applies in respect of the property:

1. The property was forfeited to the Crown in right of Ontario under any Ontario statute or the Criminal Code (Canada).

2. Possession of the property has been or may be taken in the name of the Crown in right of Ontario under the Escheats Act, 2015.

3. The property is forfeited corporate property to which the Forfeited Corporate Property Act, 2015 applies. 2015, c. 38, Sched. 7, s. 46.

3 The relation of landlord and tenant does not depend on tenure, and a reversion in the lessor is not necessary in order to create the relation of landlord and tenant, or to make applicable the incidents by law belonging to that relation; nor is it necessary, in order to give a landlord the right of distress, that there is an agreement for that purpose between the parties. R.S.O. 1990, c. L.7, s. 3.

In order to understand the relationship between the Commercial Tenancies Act, RSO 1990 and the Residential Tenancies Act, 2006 can be understood through the lense of Newman v. Glanville, 2019 ONSC 1040 (CanLII) the court shows us:

[1] Mr. Newman owns a house which is located at 446 Whitmore Avenue in Toronto. Cedric Glanville became a tenant in Mr. Newman’s home in August, 1994. It appears that the two friends never did have a written lease but Mr. Glanville paid his rent weekly and they shared the house for many years.

[2] Mr. Newman now applies under rule 14.05 for an order to evict Mr. Glanville.

[3] Mr. Newman has filed an affidavit in which he indicates that he first gave written notice to Mr. Glanville to leave the house back in 2010. He has repeatedly asked him to leave since then but Mr. Glanville has refused. In the interim, Mr. Glanville has begun to drink heavily and makes no effort to clean up after himself. He has not paid his rent since March 9, 2018 and he refuses to pay his arrears despite repeated requests by Mr. Newman.

[4] Mr. Newman served a written Notice of Eviction on Mr. Glanville on August 8, 2018. The Notice gave Mr. Glanville 60 days to vacate the house. The notice clearly set out the reasons for the eviction including the failure to clean garbage from the home, a refusal to clean the bathroom leaving it in “a disgusting state” and the excessive use of utilities. Notwithstanding a very reasonable notice period, Mr. Newman has not vacated the house.

[7] Mr. Newman initially sought to evict Mr. Glanville from the home by applying to the Landlord and Tenant Board under the Residential Tenancies Act 2006. The board declined jurisdiction to hear the application citing section 5(i) of the Residential Tenancies Act which excludes jurisdiction in circumstances where the landlord and tenant share either a bathroom or a kitchen. Mr. Newman and Mr. Glanville share both. In those circumstances, the Commercial Tenancies Act applies rather than the Residential Tenancies Act.

[8] Mr. Newman’s grounds to bring this application can be found in section 20 of the Commercial Tenancies Act. Under that section, the court has a wide discretion to grant relief where there has been a breach of a lease agreement. The court may:

a. order the payment of rent;

b. make a costs order;

c. award damages: and

d. issue injunctive relief to restrain any future breach of the lease agreement.

[9] Section 20 also permits the court to provide the respondent with an opportunity to remedy the defaults which gave rise to the breach of the leasing agreement.

[10] Under section 19(2) of the Commercial Tenancies Act, an eviction from the property can only be obtained if proper notice has been given. The notice provided to the tenant must specify the breach of the lease that is alleged by the landlord and provide an opportunity to the tenant to remedy that breach. Under section 28 of the Act, a weekly tenancy can be terminated on one week’s notice.

[12] Mr. Glanville has had sufficient opportunity to address the failings that gave rise to his breach of the lease. Mr. Newman served him with a very clear notice in writing on August 8, 2018 and no rent has been paid since that day. Mr. Glanville has done nothing to repair the damage that he has caused.

[13] Mr. Glanville is now wrongfully in possession of the home. I have received no evidence or submissions from him that would dissuade me from issuing an eviction order.

[14] There will be an order declaring that the lease was terminated on October 8, 2018.

[15] There will be a further order granting a writ of possession to Mr. Newman. The writ of possession may be enforced by the Sheriff’s office if Mr. Glanville does not vacate the premises by February 28th, 2019.

General Principles on Tenancies

The principle we can extract from Newman v. Glanville, 2019 ONSC 1040 (CanLII) is that where there RTA does not apply to a tenancy as a result of an exemption the Commercial Tenancies Act, R.S.O. 1990, c. L.7 applies. Using Newman v. Glanville, 2019 we can see that the same principles would apply where parts of section 5 (a) of the Residential Tenancies Act, 2006 which states:

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;

Clearly the CTA does not always apply when the RTA does not, based on the above cases the following principles appear to apply when determining if there is a tenancy:

• it is of the essence of a lease that the lessee acquire the exclusive possession of the leased premises

• A license does not include "assigns," and is not transferable. A license does not create a leasehold interest in land

• An agreement will constitute a lease if it grants, and was intended to grant, exclusive possession of the premises to the occupant.

• By seeing whether the grantee was given a legal right of exclusive possession of the land for a term or from year to year or for a life or lives. If he was, he is a tenant

• If the agreement confers on the occupier exclusive possession, this is prima facie a grant of an interest in land.

• The court must decide whether on its true construction the agreement confers on the occupier exclusive possession. If exclusive possession at a rent for a term does not constitute a tenancy then the distinction between a contractual tenancy and a contractual licence of land becomes wholly unidentifiable.

• It is clear that the parties cannot turn a tenancy into a licence merely by calling it one.

• The nature of the relationship created by the instrument under examination depends on the substance of the instrument and not its form or the form of the expressions used in it

• One explanation suggests that the exclusivity required is not absolute exclusivity but is related to the purpose of the occupancy or use. The occupancy or use must be sufficiently exclusive to permit the occupant to carry out the purpose for which it acquired an interest in the land.

• the following elements in distinguishing a tenancy from a licence agreement: (i) the creation or transmission of an estate in the tenant and a transfer of control of the premises to the tenant (at para. 9); (ii) exclusive possession granted to the tenant in relation to the purpose for which occupation is intended; and (iii) restrictions imposed on the tenant to the extent that they undermine the exclusivity of possession

The Application of the Tresspass to Property Act

The Trespass to Property Act, R.S.O. 1990, c. T.21 states as follows:

1 (1) In this Act,

“occupier” includes,

(a) a person who is in physical possession of premises, or

(b) a person who has responsibility for and control over the condition of premises or the activities there carried on, or control over persons allowed to enter the premises,

even if there is more than one occupier of the same premises; (“occupant”)

2 (1) Every person who is not acting under a right or authority conferred by law and who,

(a) without the express permission of the occupier, the proof of which rests on the defendant,

(i) enters on premises when entry is prohibited under this Act, or

(ii) engages in an activity on premises when the activity is prohibited under this Act; or

(b) does not leave the premises immediately after he or she is directed to do so by the occupier of the premises or a person authorized by the occupier,

is guilty of an offence and on conviction is liable to a fine of not more than $10,000. R.S.O. 1990, c. T.21, s. 2 (1); 2016, c. 8, Sched. 6, s. 1.

• What is physical possession?
• Public policy on the use of police powers of enforcement...