LTB Decisions – LTB Decrees RTA Does Not Apply (However)

LTB Decisions:
Luis Dos Santos v Green Acre RV Park – Order_SWT-68358-14 (1)  and
John & Maria  Saraiva  v Paul  Bunyan  Trailer  Camp  Limited  – Order_SWT-65538-14

Topic: Does the RTA Apply to Park Model Trailers on Leased Site in an RV Park – LTB says NO!  (Based mainly on RTA Exemption Rule 5A)

Comments of The Author (These comments are the personal comments of the writer and have no legal standing. If you want legal advice, contact a lawyer)

The LTB has their own interpretation of Rule 5(a) both of these rulings uses this interpretation.

The RTA applies to most mobile home parks and land lease communities.

It does not apply to:

  • a mobile home park or land lease site used by people who are travelling or on vacation
  • a mobile home park site in a resort, tourist camp, campground, or trailer park that is only occupied for a seasonal or temporary period.
  • http://www.sjto.gov.on.ca/ltb/faqs/

A Permanently Mounted Trailer, Park Model, or Land Lease Home that remains on the site or OCCUPIES the site over the winter should not be excluded from the RTA based on this rule. There are parks that do not have permanent or perennial sites and the site must be vacated at the end of the season. This is not the case here.  The Actual Rule in the RTA refers to living accommodations not a site. However these terms are interchangeable.

Using the LTB interpretation of 5(a), it would exclude sites from the RTA, in year round parks where the tenant goes south for several months during the winter.

“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,

Another thing to look at is the definitions of Campground and Trailer Park. The RTA does not provide these definitions. However Termium Plus, the Canadian Governments Terminology Data Bank does.

From Termium Plus – More Detail can be found on this Definitions Page

Campground: A portion of land made of a number of campsites; it may include facilities such as roads, parking lots, sanitary and water utilities.

Campsite:An area which provides a tent site or a trailer space for campers, and which may be equipped with a picnic table and a fire ring.

Trailer Park:[A campground] equipped with running water, electricity, and other facilities, for accommodating automobile trailers.  (Not to be confused with “mobile home park.”)

Camper: A person who lives temporarily in a tent or a recreation vehicle especially for a holiday.

These definitions do not apply to permanent (perennial) sites, land lease communities, mobile home communities, and as such they should not be excluded from the RTA under rule 5(a)

Exemptions from Act  (RTA)

(a) living accommodation intended to be provided to the traveling 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.

[From Putnam v. Grand River Conservation Authority. 2006 ]

The listing of places where this seasonal or temporary accommodation is to take place clearly is a listing of places, owned by private persons or businesses, which appeal to the general public as vacation spots or places to stay when one is away from home. They represent accommodation for travelers, for vacationers, for anyone who needs temporary accommodation provided by someone other than themselves.

The LTB Member  in Luis Dos Santos v Green Acre RV Park – Order_SWT-68358-14 (1)   and
in John & Maria  Saraiva  v Paul  Bunyan  Trailer  Camp  Limited  – Order_SWT-65538-14
have a very liberal interpretation of this paragraph taken from the Putnam Decision.

Based on the  Putnam decision,  5(a)  should read as follows This is the intent of this rule.

5.  This Act does not apply with respect to,

(a) living accommodation(owned by the Landlord) 

  • intended to be provided to the traveling 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

A tenant owned trailer or structure does NOT apply here in 5A, and seasonal or year-round has no bearing here as the a seasonal or temporary period line only applies to accommodations provided by the park.

Rulings like those above by the LTB have been appealed at the Divisional and  Supreme  Court level and won.  I can only surmise that the LTB hopes the parties don’t want to fork out the $10,000+ to appeal the decision. It’s too bad the LTB can’t be held accountable for ignoring case law.

Both  Mathews v. Algoma Timberlake and Putnam v Grand River Conservation Authority were Cases where the LTB erred on the use of 5A and were overturned on appeal

[From Mathews v. Algoma Timberlake ]

The Court of Appeal further held that the Divisional Court had erred in determining that because the tenants’ sites were used for recreational purposes, they were not residential. The Court noted that if the Divisional Court’s interpretation were to prevail, a person who rented premises while residing elsewhere could not be protected by the RTA.

The Court of Appeal’s decision is consistent with the Divisional Court’s prior decision in Putnam v. Grand River Conservation Authority (2006), 210 O.A.C. 291. Both cases stand for the proposition that, where cottage or cabin establishments are at issue, the RTA only excludes those cottages or cabins that are operated analogous to rooms in a hotel, seasonal campsite or bed and breakfast. Where the cottage or cabin is a permanent structure constructed on lands leased year-round by the tenant, the cottage or cabin is a “land lease home” and the tenant is entitled to the protections of the RTA.

With the exception of Rule 5(a) there is no reference to seasonal or year round conditions. All definitions are absolute.

(4) A rented site for a mobile home or a land lease home is a rental unit for the purposes of this Act even if the mobile home or the land lease home on the site is owned by the tenant of the site.  2006, c. 17, s. 2 (4).

“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

Therefore another interpretation for Rule 5(a) is that the living accommodations mentioned here includes a site on which there is a land lease home, and this site is occupied by a land lease home all year.

Application of Act

3. (1) This Act applies with respect to rental units in residential complexes, despite any other Act and despite any agreement or waiver to the contrary. 2006, c. 17, s. 3 (1).

To make 5(a) idiot proof, I would suggest a change to 5(a) as follows

Exemptions from Act

5. This Act does not apply with respect to,

(a)(1) living accommodation intended to be provided by the land lord to the traveling or vacationing public.

(a)(2) living accommodation intended to be provided by the land lord and 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;

  1. (1) In making findings on an application, the Board shall ascertain the real substance of all transactions and activities relating to a residential complex or a rental unit and the good faith of the participants and in doing so,

(a) may disregard the outward form of a transaction or the separate corporate existence of participants; and

Separate Corporate Existence: Each must participant must operate so that:
  • Their respective business transactions, accounts, and records are not intermingled;
  • Each observes the formalities of their separate corporate procedures;
  • Each is held out to th

    e public as a separate enterprise;

In other words, disregard the contents of any lease or license of occupation

(b) may have regard to the pattern of activities relating to the residential complex or the rental unit.  2006, c. 17, s. 202.

Pattern of Activities related to the residential complex or the rental unit. 

  1. Tenant has a lease or license of occupation
  2. Tenant owned equipment is permanently mounted on the site
  3. Tenant pays rent to allow the equipment to occupy the site year round.
  4. Tenant has access to all recreational facilities that are made available to all registered visitors  to the park .
  5. Tenant has unlimited access to his Rental Unit 24×7 for the duration of the park’s open season.
  6. Tenant has daytime only access for off season maintenance of the unit (Raking Leaves, and snow removal from the roof, damage assessment after storms)

The Supreme Court of Canada dismissed with costs Jan. 27,  2011 an appeal from Algoma Timberlakes Corporation, the owners of the tract of land since late 2005, on which the cottagers have leased properties for decades.

The litigants, in fact, will receive $18,000 in court costs up to the Ontario Court of Appeal level. While they were awarded costs also for the Supreme Court submissions, that amount has not yet been announced.

http://www.saultthisweek.com/2011/02/02/algoma-timberlakes-appeal-to-the-supreme-court-dismissed