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.

[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.”