Trailer Park - Application of the RTA

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;

“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;

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

“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;

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

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

(c) a site that is a rental unit,

“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

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.

(3) In interpreting a provision of this Act with regard to a mobile home park or a land lease community, if a provision in Part X conflicts with a provision in another Part of this Act, the provision in Part X applies.

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;

TST-64688-15-RV-IN-AM (Re), 2017 CanLII 9473 (ON LTB)

18. In Matthews v. Algoma Timberlakes Corp. while the Court of Appeal for Ontario considered the proper interpretation of the Act and its applicability to land leases for recreational land lease homes, the Court, nonetheless, engages in an extensive analysis of the applicability of subsection 5(a) of the Act and the appropriate interpretation in connection therewith. While some of the facts in Matthews v. Algoma Timberlakes Corp. are certainly different from those in the instant case, in keeping with Glanville Williams, above, it is the ratio decidendi [reason of deciding] of a case, the material facts of the case plus the decision thereon that matters. Moreover, the Court in Matthews v. Algoma Timberlakes Corp. does, at paragraphs 28, 29 and 33 to 35, inclusive, and as will be referred to below, directly address the very relevant issue of whether a type of occupation is for a temporary period, which issue is at the heart of the Member’s decision in the instant case.

31. What is required is a purposive and plain reading of subsection 5(a) of the Act and such sets out three elements: (1) the accommodation must be living accommodation; (2) it must be provided to the travelling or vacationing public or occupied for a seasonal or temporary period (my emphasis) and (3) be situated in a hotel, motel, bed and breakfast or other listed establishment

34. This is consistent with Curtis Property Management v. Rezai (unreported, March 28, 1989, Ont. Dist. Ct.), where Justice Conant found that a rented hotel room fell within the realm of “rented residential premises” based on a number of factors, including: whether the occupant had demonstrated an intention to reside there on a "somewhat permanent basis" (i.e., having moved in what most people might consider fixtures, such as stereo equipment, rugs, pictures lamps, etc.); whether typical hotel services (e.g. room service and cleaning) were included; and, the degree of control the occupant had over the suite or, conversely, whether the owner was free to enter the unit at will. In his reasons, Conant, J. wrote that, “If the premises are residential, then the landlord's calling the building a ‘hotel’ was an invalid attempt to evade the provisions of the [then] Landlord and Tenant Act.”

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

[6] The facts are not in dispute. The appellants each leased lots roughly one acre in size in a lake area north of Sault Ste. Marie. Lots were initially leased from Algoma Central Railway ("ACR"), mostly in the 1970s and 1980s. While there were a number of forms of lease, and many appear to be of indefinite duration, the unchallenged evidence of the individual most familiar with all the leases was that "all recreational leases were written . . . with a 20 year less a day lease, with a [renewable] term of one year". The length of the lease was in keeping with ACR's stated intention that the lessees erect structures of a permanent nature with a specified minimum value within two years of the initiation of the lease. The leases stipulated modest rents, which were subject to an annual rent increase in keeping with the annual inflation rate reflected in the Consumer Price Index. Lessees renewed their leases simply by paying the increased rent.

[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]

[30] In my view, the Board and the Divisional Court majority were diverted from their task by the submission that the cottage sites were "recreational" and by their conclusion that recreational use precluded the premises from fitting within the "residential" definition of a rental unit. This conclusion was based on the reliance by both the member and the majority in the Divisional Court on the definitions of "residence" and "recreational camp" found in D.A. Dukelow, The Dictionary of Canadian Law, 3rd ed. (Scarborough, Ont.: Carswell, 2004). These definitions are not helpful. In my view, it is the legislative definition rather than the dictionary definitions that must prevail in this case. This view is supported by a further entry in the same dictionary, which provides a separate and distinct definition for "residential unit" as encompassing "any living accommodation used or intended for use as residential premises". This definition cites the Tenant Protection Act, 1997 in support. [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]

[32] The purpose of the legislation is to provide protections to tenants. There is no reason to exclude tenants who have a penchant for recreation and spending time with their families in the outdoors. Indeed, if it had been the legislature's intention to exclude recreational units from the Act, it could have added living accommodation occupied for "recreational" purposes to the s. 5 list of premises to which the Act does not apply.

[33] Timberlakes points to the exclusion, contained in s. 5(a), of premises "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". In [page601] particular, Timberlakes argues both that the lessees occupy the premises for a "temporary period" and that the premises are a "resort", "campground" or "vacation home". I do not accept either argument.

TET-56104-15 (Re), 2015 CanLII 35724 (ON LTB)

18. A plain reading of subsection 5(a) of the Act sets out three elements: (1) the accommodation must be living accommodation; (2) it must be provided to the travelling or vacationing public or occupied for a seasonal or temporary period (my emphasis); and (3) be situated in a in a hotel, motel or motor hotel. I would further interpret the subsection to require the presence of all three elements for an exemption to exist. The onus is on the Landlord to prove the exemption.

21. A landlord cannot change the character of a tenancy to exempt it from the Act. Simply because the Landlord may have been advised by the previous landlord and real estate agent that the Inn was covered by the Innkeepers Act or because the agreement of purchase and sale states that the “residing tenants” would have to make arrangements with the new owner as any agreements with the previous owner ended on the day of closing of the transaction or, as the Landlord testified, because he has a “different operating philosophy”, does not make the Inn exempt from the Act.

22. Moreover, Section 202 of the Act requires that I look at all of the circumstances in making determinations and I find that the evidence before me, especially the intention of the parties to the original tenancy agreement, is indicative of long-term permanent tenancies entered into between the Tenants and the previous landlord to which the Act applies and which, by operation of Section 18 of the Act, run with the land and must be honoured by the current Landlord.

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

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.

50. Mixed use properties are not uncommon. For example there are mixed commercial/residential buildings, where retail or commercial businesses occupy one or more floors, while residential units, subject to the Act, occupy other floors. Similarly there are apartment/hotels, where a portion of the building is set aside for temporary accommodation, to which the Act does not apply, while another portion is for residential use, subject to the Act.

51. I therefore find that the portion of the Park set aside for and used by mobile homes is a mobile home park within the meaning of the Act.

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.

59. I do not agree. It is open to the Landlord, before the commencement of the tenancy to ascertain the suitability of the tenant for the Park, subject always to Human Rights and similar considerations. In addition, the Landlord has made and published a comprehensive set of Rules that form part of the rental agreement and to which each tenant has agreed. These rules include rules of conduct that are specific to a naturist environment.