Matthews et al. v. Algoma Timberlakes Corporation
[Indexed as: Matthews v. Algoma Timberlakes Corp.]

102 O.R. (3d) 590

2010 ONCA 468

Landlord and tenant — Residential tenancies — Landlord and Tenant Board — Jurisdiction — Section 9(1)(a) of Residential Tenancies Act not giving Landlord and Tenant Board jurisdiction to exempt landlords from their statutory and regulatory responsibilities for provision and maintenance of services to residential units — Residential Tenancies Act, 2006, S.O. 2006, c. 17, s. 9(1)(a).

Landlord and tenant — Residential tenancies — Meaning of “residential” — Applicants leasing land from respondent’s predecessor and erecting cottages which they used year-round as second homes — Cottages being “living accommodation” used or intended for use as “rented residential premises” — Fact that premises were used for recreational purposes not preventing them from being “residential” — Residential Tenancies Act applying to premises — Exclusion in Act for “seasonal or temporary” occupation not applying — Residential Tenancies Act, 2006, S.O. 2006, c. 17. [page591]

The applicants each leased land from the respondent’s predecessor and erected cottages which they used as year-round second homes. When the respondent acquired the land, it sent eviction notices to some lessees and gave notices of significant rent increases to other lessees. It also purported to replace the leases with licences which gave it an unfettered discretion whether to renew the licence upon its annual expiration. The applicants brought an application for a determination that the Residential Tenancies Act, 2006 applied to their land lease community. The Landlord and Tenant Board dismissed the application. The Divisional Court dismissed the applicants’ appeal, holding that the premises in question were not “residential” because they were used for recreational purposes. The applicants appealed.

Held, the appeal should be allowed.

All residential properties, including those used by tenants for recreational as well as residential purposes, are subject to the Act. The cottages in question were “living accommodation” used or intended for use as “rented residential premises”. 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 and regardless of whether they live in the accommodation 52 weeks a year or some lesser amount of time, or whether the unit in question is their primary or secondary residence. The “seasonal or temporary” exclusion in s. 5(a) of the Act did not apply to the cottages in question. The evidence established that the leases were intended to be continually renewed over a long period of time. All of the leases provided for payment of rent on an annual basis.

Section 9(1)(a) of the Act does not give the Board the jurisdiction to exempt landlords from their statutory and regulatory responsibilities for the provision and maintenance of services to a residential unit.

APPEAL from the order of the Divisional Court (Wright, Heeney and Pierce JJ.) dated January 5, 2009 dismissing an appeal from the ruling of the Landlord and Tenant Board.

The judgment of the court was delivered by

LANG J.A.: — I. Introduction

Cases referred to Wheeler v. Ontario (Minister of Natural Resources) (2005), 2005 CanLII 13039 (ON SCDC), 75 O.R. (3d) 113, [2005] O.J. No. 1544, 197 O.A.C. 117, 138 A.C.W.S. (3d) 738 (Div. Ct.), consd Other cases referred to Bell ExpressVu Limited Partnership v. Rex, [2002] 2 S.C.R. 559, [2002] S.C.J. No. 43, 2002 SCC 42 (CanLII), 212 D.L.R. (4th) 1, 287 N.R. 248, [2002] 5 W.W.R. 1, J.E. 2002-775, 166 B.C.A.C. 1, 100 B.C.L.R. (3d) 1, 18 C.P.R. (4th) 289, 93 C.R.R. (2d) 189, REJB 2002-30904, 113 A.C.W.S. (3d) 52; Canada (Human Rights Commission) v. Canadian Airlines International Ltd., [2006] 1 S.C.R. 3, [2006] S.C.J. No. 1, 2006 SCC 1 (CanLII), 263 D.L.R. (4th) 1, 343 N.R. 308, J.E. 2006-298, [2006] CLLC Â230-004, 145 A.C.W.S. (3d) 883, 55 C.H.R.R. D/78; Putnam v. Grand River Conservation Authority, 2006 CanLII 18526 (ON SCDC), [2006] O.J. No. 2217, 210 O.A.C. 191, 148 A.C.W.S. (3d) 992 (Div. Ct.) Statutes referred to Commercial Tenancies Act, R.S.O. 1990, c. L.7 Land Lease Statute Amendment Act, 1994, S.O. 1994, c. 4 Landlord and Tenant Act, R.S.O. 1960, c. 206 Landlord and Tenant Act, R.S.O. 1990, c. L.7, Parts I, II, III, IV Landlord and Tenant Amendment Act, 1975 (2nd Session), S.O. 1975 (2nd Session), c. 13 Residential Tenancies Act, 2006, S.O. 2006, c. 17, ss. 1, 2(1), 3(1), 4, 5 [as am.], (a), 9(1), (a), 20, (1), Part X, 152(2), 161, 202, 210 Tenant Protection Act, 1997, S.O. 1997, c. 24, s. 3(a) [rep. S.O. 2006, c. 17] [page592] Rules and regulations referred to O. Reg. 517/06 (Residential Tenancies Act, 2006), ss. 2(2), 10(1), (4), 14(5) Authorities referred to Driedger, Elmer A., Construction of Statutes, 2nd ed. (Toronto : Butterworths, 1983) Dukelow, Daphne A., The Dictionary of Canadian Law, 3rd ed. (Scarborough, Ont.: Carswell, 2004) Ontario, Legislative Assembly, Official Report of Debates (Hansard), No. 8 (November 25, 1975) Ontario, Legislative Assembly, Official Report of Debates (Hansard), Standing Committee on General Government (August 5, 6, and 7, 1997).

Robert G. Doumani, for appellants.

Joseph J.M. Hoffer and Kristin A. Carnie, for respondent.

[1] The Landlord and Tenant Board dismissed the appellants’ application for a determination that the Residential Tenancies Act, 2006, S.O. 2006, c. 17 (the “Act“) applied to their land lease community. The Divisional Court dismissed the appellants’ appeal. The appellants further appeal to this court.

[2] Section 210 of the Act provides a right to appeal an order of the Board to the Divisional Court, but only on a question of law. After argument, counsel provided further submissions concerning whether this appeal raises a question of law, fact, or mixed fact and law and whether the Board member’s decision is entitled to deference. We are grateful for and have considered those submissions.

[3] Even assuming that deference is owed to a tribunal’s decision that is based on the interpretation of its home statute, in my view deference is not owed in the circumstances of this case. In this case, the decision was based on dictionary definitions of “residence” and did not reflect a nuanced approach based on Board member’s expertise. As well, the Board member considered himself to be bound by the decision of the Divisional Court in Wheeler v. Ontario (Minister of Natural Resources) (2005), 2005 CanLII 13039 (ON SCDC), 75 O.R. (3d) 113, [2005] O.J. No. 1544 (Div. Ct.). Accordingly, in my view, the decision is not entitled to deference. [page593]

[4] I also conclude that this appeal, as it did before the Divisional Court, raises a question of law: namely, the proper interpretation of provisions of the Act. The primary issue is the interpretation to be given to “residential”, in the context in which that term is used in the Act. In my view, consideration of the term “residential” leads to the interpretation that all residential properties, including those used by tenants for recreational as well as residential purposes, are subject to the Act.

[5] The secondary issue is whether the Act gives the Landlord and Tenant Board the jurisdiction to exempt landlords from their statutory and regulatory responsibilities for the provision and maintenance of services to a residential unit. On this issue, I would conclude that the Board does not have that jurisdiction. II. Background

[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.

[7] ACR provided potential lessees with a document entitled “Information for Lessees in Algoma Central Country”, which referred to lessees’ building “residences” on the sites. Other documents referred to building a “camp for private purposes” or “your own cottage” or a “private use recreational camp”. [See Note 1 below]

[8] Certain versions of later leases purported to provide that no residence constructed on the land would be “used or occupied as residential premises” or a “rental unit” under the applicable residential landlord tenant regime. The rental documentation allowed lessees to sell the buildings they built on the sites and to [page594] sublet their “private recreational leases . . . provided it [did] not create a continually commercial operation”.

[9] As the sites rented, ACR informed the lessees about township requirements. The ACR brochure specifically addressed the need for a lessee to apply to the “appropriate Health Authority” regarding approval for sewage disposal and required the lessees to “conform with all local health regulations”. A 1988 document, entitled “General Information for Lessees on Railway Lands”, detailed the requirements for lot, privy and septic-tank setbacks, for installation of leaching pits for kitchen waste and for garbage disposal. In executing the leases, the lessees were bound by a term that generally required them to comply with all site-related statutory provisions and government regulations. Lessees were also informed of the need for work permits to clear land and construct cabins, as well as the need for a fire permit for certain times of year. As described by Heeney J., the landlord provided no “road maintenance, road access, dock maintenance, sewage and garbage disposal, snow plowing, electrical and water infrastr ucture, . . . [or] potable water”.

[10] The sites were largely accessible to the lessees only by railway, logging road, boat or all-terrain vehicle. As a result, the cottages on the sites were built “with blood, sweat and tears”. They were described in evidence as “attractive, solid, stable buildings” and by property inspectors, Elliott Engineering, as “built for the long term to be used all year”. Most of the cottages were insulated and heated for winter use. Photographs of the appellants’ cottages showed they were largely carefully constructed dwellings of significant substance. The evidence indicated that the cottages contained the usual amenities for a northern Ontario camp, including living quarters, bedrooms, kitchens and decks. Each camp had an outhouse that was compliant with township requirements.

[11] While the leases provided that the sites could not “be used for continuous year-round habitation”, and later described their use to be “seasonal”, the unchallenged evidence of the ACR representative was that the cottages were “used at all times of the year, during vacations, holidays, weekends, etc.”. The landlord never restricted access, seasonally or otherwise. However, the sites could become inaccessible during periods of spring break-up or fall freeze-up.

[12] While at their cottages, the lessees pursued activities that the Board member found to include “family celebrations, sports, reading, playing games, walks, television viewing etc.”. Virtually all the lessees, including the appellants, maintained a principal [page595] residence elsewhere. In other words, the lessees used the cottages as their secondary homes.

[13] By December 2005, when Algoma Timberlakes Corporation (“Timberlakes”) acquired the property, the annual rent had increased to between approximately $500 to $775, depending on the size and location of the site. After Timberlakes took ownership, it sent eviction notices to those lessees who held sites north of the Batchawana River and gave notices of rent increase to those lessees who held sites south of the Batchawana River. The notices proposed significantly increased rents to roughly $2,000 per lot per year.

[14] Timberlakes also purported to replace the leases with “licences” and to change the status of the lessees to that of licensees. The proposed licence agreements gave Timberlakes an unfettered discretion whether to renew the licence upon its annual expiration. The proposed licensees were expected to acknowledge that there would be no permanent structures on what the draft licence described as “seasonal, recreational campsite(s)” and that, at the end of the licence term, the lessees had 30 days to remove their cottages. The Timberlakes proposal of a licence system and rent increase led to the application to the Board and to this appeal. III. Statutory Provisions

[15] Section 1 sets out the purposes of the Act:

1. The purposes of this Act are to provide protection for residential tenants from unlawful rent increases and unlawful evictions, to establish a framework for the regulation of residential rents, to balance the rights and responsibilities of residential landlords and tenants and to provide for the adjudication of disputes and for other processes to informally resolve disputes.

[16] Section 3(1) provides that the Act applies to “rental units”. The parties agree that the premises are land lease homes in a land lease community to which the Act applies, provided the premises are otherwise “rental units”. Section 2(1) defines “rental unit” as follows:

. . . 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 . . . [See Note 2 below] [page596] “Rent” is defined in the same section as “the amount of any consideration paid . . . for the right to occupy a rental unit”.

[17] Section 5 describes living accommodation to which the Act does not apply, including in s. 5(a):
(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[.]

[18] Section 3(1) provides that the Act applies “despite any agreement or waiver to the contrary”. Section 4 states that “a provision in a tenancy agreement that is inconsistent with this Act or the regulations is void”. Section 202 directs the Board to “ascertain the real substance of all transactions and activities relating to . . . a rental unit”. Section 202 further provides that the Board may (a) “disregard the outward form of a transaction” and (b) “have regard to the pattern of activities relating to the . . . rental unit”.

[19] Sections 9(1)(a), 20(1) and 161 of the Act are raised as relevant to the secondary question concerning the alleged jurisdiction of the Board to grant exemptions from a landlord’s statutory responsibilities:

9(1) A landlord or a tenant may apply to the Board for an order determining,
(a) whether this Act or any provision of it applies to a particular rental unit or residential complex . . . . .

20(1) A landlord is responsible for providing and maintaining a residential complex, including the rental units in it, in a good state of repair and fit for habitation and for complying with health, safety, housing and maintenance standards. . . . . .

161. In addition to a landlord’s obligations under section 20, a landlord is responsible for,
(a) removing or disposing of garbage or ensuring the availability of a means for removing or disposing of garbage in the mobile home park at reasonable intervals;
(b) maintaining mobile home park roads in a good state of repair; [page597]
(c) removing snow from mobile home park roads;
(d) maintaining the water supply, sewage disposal, fuel, drainage and electrical systems in the mobile home park in a good state of repair;
(e) maintaining the mobile home park grounds and all buildings, structures, enclosures and equipment intended for the common use of tenants in a good state of repair; and
(f) repairing damage to a tenant’s property, if the damage is caused by the wilful or negligent conduct of the landlord.

IV. The Decisions Below

[20] At the hearing before the Landlord and Tenant Board, the appellants sought declarations that (i) the Act applied to their premises; and (ii) the respondent was not required to provide the premises with the services described in s. 161 of the Act. The Board member concluded that the premises were not governed by the Act and accordingly did not address the issue of the obligation of the landlord to provide services to the premises.

[21] The Divisional Court dismissed the appeal, with Heeney J. writing for the majority and J. deP. Wright J. concurring in the result. The Divisional Court agreed with the Board that the premises were not “residential” and that the Act did not apply. The Divisional Court also rejected the appellants’ submission that s. 9(1)(a) of the Act provided the Board with jurisdiction to exempt a landlord from any obligations otherwise imposed by the Act. Finally, the Divisional Court took the view that the statutory framework placed requirements on landlords to provide services to land lease communities. In the Divisional Court’s view, it would be onerous for the landlord to meet its statutory obligations in this case. This, the Divisional Court concluded, supported its interpretation that the premises were not residential. V. Analysis

[22] The modern rule of statutory interpretation requires that “the words of an Act . . . 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”: Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42 (CanLII), [2002] 2 S.C.R. 559, [2002] S.C.J. No. 43, at para. 26, citing Elmer A. Driedger, Construction of Statutes, 2nd ed. (Toronto: Butterworths, 1983), at p. 87. Given the remedial nature of the Act, its [page598] provisions must be interpreted liberally to ensure the realization of its objectives: see Canada (Human Rights Commission) v. Canadian Airlines International Ltd., 2006 SCC 1 (CanLII), [2006] 1 S.C.R. 3, [2006] S.C.J. No. 1, at para. 16.

[23] In this case, s. 1 of the Act provides that one of the legislation’s primary purposes is to protect residential tenants from unlawful rent increases and evictions. The Honourable R. Roy McMurtry, the Attorney General at the time, explained that the purpose behind extending the application of these protections to mobile homes (and later to land lease sites) was to provide tenants of those premises with security of tenure and other protections that had been available to other tenants. [See Note 3 below] To ensure that protection, the legislation provided a broad definition of a “rental unit”.
(a) Rental unit

[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.

[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.

[31] The governing legislative definition of “rental unit” asks whether the premises are used as residential premises and not what other activities are carried on by the person residing in the premises. What a particular tenant does while living in residential premises is irrelevant to the question of whether those premises are entitled to the protection of the Act. As J. deP. Wright J. observed in his concurring reasons, the argument that the appellants used their cottages for recreation, but not as their residences, “is bound to leave lay-people such as the appellants shaking their heads in wonder”.

[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.

[34] First, in my view, the undisputed evidence is that the premises were occupied for more than a temporary period and for more than a seasonal period. The premises were occupied over many seasons, months and years. The evidence establishes that the leases were intended to be continually renewed over a long period of time. Moreover, all the leases provided for payment of rent on an annual basis. There was no seasonal or temporary rental rate. Accordingly, in my view, the s. 5(a) exclusion regarding “seasonal or temporary” occupation does not apply.

[35] Second, even if it could be found that occupation was for a seasonal or a temporary period, the category of premises at issue in this case is quite different from the living accommodations specifically excluded by s. 5(a) of the Act. Regarding the applicability of what was s. 3(a) of the then Tenant Protection Act, 1997, the Divisional Court in Putnam v. Grand River Conservation Authority, 2006 CanLII 18526 (ON SCDC), [2006] O.J. No. 2217, 210 O.A.C. 191 (Div. Ct.), at para. 25, cited with approval the reasoning of the Ontario Rental Housing Tribunal regarding rented “cottage” lots:

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 travellers, for vacationers, for anyone who needs temporary accommodation provided by someone other than themselves.

The Tribunal accepts that the phrase “in a . . . cottage or cabin establishment” in Section 3(a) should be interpreted to mean that the grouping of cottages or cabins (the establishment) available as seasonal or temporary accommodation is analogous to the rooms in a hotel or a motel, or the rooms in a “bed and breakfast” or in an inn, or the sites at a campground or in a trailer park, available as living accommodation to be occupied for a seasonal or temporary period. To interpret otherwise would be to “hive off” this particular phrase from the listing in Section 3(a) and give it a completely different interpretation from the other words and phrases in the listing. Similarly, 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.

[36] I am not persuaded otherwise by the decision of the Divisional Court in Wheeler, which the Board member in this case considered to be binding. In my view, that decision rested on the primary ground that the Act did not apply to property owned by the provincial Crown. Moreover, the obiter, in para. 14 of Wheeler, concerning “recreation properties” was not accompanied by an [page602] exercise of statutory interpretation that included an analysis of the Act or its purpose.

[37] Accordingly, in my view, the term “residential” in the Act refers to the residential use of the premises and the Act does not provide a blanket exclusion for recreational properties. There being no dispute about the facts, I conclude that the lessees’ sites are subject to the Act.
(b) Landlord’s obligations

[38] The appellants seek a declaration under s. 9(1)(a) exempting the respondent from performing any obligations under ss. 20 and 161 of the Act.

[39] In my view, Heeney J. correctly concluded that s. 9(1) (a) does not give the Board jurisdiction to grant a landlord a statutory exemption. As Heeney J. explained:

This submission . . . would give the Board the power to pick and choose what obligations to impose on a landlord in any given case, based entirely on its own discretion. It would render uncertain the entire application of the Act, since neither tenants nor landlords would know what their rights and obligations were until the Board exercised its discretion.

This section is clearly intended to give the Board the power to determine whether any particular provision applies to any particular situation, based on an analysis and application of the provisions and definitions contained in the Act . . . . Section 9(1)(a) is not intended to give the Board unfettered discretion to relieve landlords from the obligations imposed by the RTA, such as those found in sections 20 and 161. Jurisdiction to exempt the landlord from its obligations could only flow from the provisions of the RTA itself, and there is no section in the Act that provides for this. Indeed, s. 3(1) prevents even the parties themselves from agreeing to exempt the landlord from these obligations.

[40] However, I do not agree with Heeney J.’s conclusion that the landlord’s responsibilities as set out in the Act bolster the position that the Act was not intended to “fit” the properties that are the subject of this case.

[41] I acknowledge that as a practical matter, ss. 20 and 161 of the Act may present challenges when applied to both the usual urban apartment complex and to land lease communities of the nature of those described in this proceeding. The practical differences between urban rental units and land lease and mobile home units have long been recognized. Despite this recognition, the legislature has chosen to leave land lease regulation within the current framework that applies equally to all residential units. [See Note 5 below] [page603]

[42] Nonetheless, the application of the current framework to the appellants’ premises may not impose as “onerous” a burden upon the landlord as the Divisional Court assumed. While the obligations under s. 161 were relied on before the Board, s. 161(a) only requires the landlord to “ensur[e] the availability of a means for removing or disposing of garbage”. [See Note 6 below] The evidence in this case shows that the landlord required the lessees to assume responsibility for garbage and other regulatory requirements. Subsections (b), (d) and (e) of s. 161 appear to require a landlord to maintain services only if those services have already been provided. The snow removal requirement of s. 161(c) presumes that there are roads in the land lease community from which snow must be removed.

[43] As the Divisional Court observed, obligations are also imposed on a landlord by the maintenance standards set out in O. Reg. 517/06. Section 2(2) of the maintenance standards states, “Except as otherwise provided, the landlord shall ensure that the maintenance standards in this Regulation are complied with.” Again, this provision does not oblige the landlord to meet standards, but only to ensure compliance with them. Similarly, certain of the regulatory standards provide that the landlord “maintain” a standard; they do not require a landlord to provide a service that did not exist in the first place. For example, while s. 10(1) of the Regulation requires that every rental unit contain certain kitchen and bathroom fixtures, s. 10(4) provides that this requirement does not apply where the premises have “never been provided with piped water”. Similarly, s. 14(5) does not require the provision of electricity to a “residential complex that has never been connected to an electrical power system”. In any event, any failure by a landlord to ensure the required compliance would not be relevant to the interpretation of the term “residential”.

[44] Accordingly, the service provisions of the Act and the Regulation do not persuade me to a different interpretation of the term “residential”.

[45] In my view, it is a separate question whether a particular service must be provided by the landlord. The answer to that question depends upon a proper construction of the Act applied to the particular facts of these land lease homes. This is a matter that may be decided by the Board on a separate application on proper materials. [page604] VI. Disposition

[46] For these reasons, I would allow the appeal, set aside the orders below and issue a declaration that the Act applies to the land lease sites occupied by the appellants. I would otherwise dismiss the appeal. VII. Costs

[47] I would award costs to the appellants payable by the respondent fixed in the agreed-upon amount of $ 3,000, inclusive of disbursements and GST.

Appeal allowed.

SCHEDULE “A”

Schedule of Parties

APPLICANTS/TENANTS RESPONDENT/LANDLORD

Ralph Aiello Algoma Timberlakes Co. Leonard Ambeault Brian Avery Doug J. Baker Chuck Barbeau John Bauer Alfred Behrens Bruce Belisle Jacalyn Bolinger Ward Boyd Jack Breckenridge Nick Buconjic Ed Camirand John Carson Elaine Carter Kevin Case Bill Chamberlin Ronald Champagne Andy Chyc Thomas Clegg Chris Copper John Crack Paul Curran John De Francesco [page605] Donald E. Deluney Melinda Deziel Douglas Digby Harvey Eisler Norman Elliott Gini Fata James Forbes Ray Goulet Lou Gremban Gennie Gritton Eric Guindon George Hamilton Merlyn Hawdon John Hayes-Sheen Lynda Hazelton Bill Hore Raymond Hyde Bill Iles Douglas Iles Carol Jannison John Jikinosky Joe Jollineau Esko Koskela Zoltan Kovacs Roberta Kurtz Sandra Ladouceur Steven Leffler Evan Lewis Hugh A. Lowe James MacDonald Roderick MacMillan Timmothy Marlin Nick Matechuk Bob Matthews Gary Matthews Malcolm E. Matthews Richard May Brian McAdam Clark McDonnell Pearl McLean Ross Milne Stephen Najmy Gerald Odber Tom Odber John Pavoni [page606] Gordon Pickard Alfred Poirier Gary Premo Harry Premo Andre Quesnelle Ronald Rancourt John Reamer Daniel Rice Mike Rollin Randy Rose Nick Ruicci Donald Sadowski Richard Sibilo Robert M. Siegwart Stephan T. Smith John Spadafore Sam Stasiuk Denise Strachan Steve Tarabas Gerald Thibodeau Raymond Tourigny Erik Tuomi Ron Venn William Weigle Martin White George Wilks Daniel Williams Earl J. Wilson Mike Wilson Paul F. Wilson Robert J. Zufelt

Notes

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Note 1: “Camp” is a term frequently used in northern Ontario as a synonym for “cottage”.

Note 2: In 1975, the Landlord and Tenant Amendment Act, 1975 (2nd session), S.O. 1975 (2nd session), c. 13 extended the application of the Landlord and Tenant Act, R.S.O. 1960, c. 206 to mobile homes. The Land Lease Statute Amendment Act, 1994, S.O. 1994, c. 4 established that the legislation also applied to land lease rentals. Special provisions applicable to mobile home parks and land lease communities can be found in Part X of the current Act.

Note 3: Ontario, Legislative Assembly, Official Report of Debates (Hansard), No. 8 (November 25, 1975) at p. 296.

Note 4: Part IV of the Landlord and Tenant Act, R.S.O. 1990, c. L.7 was devoted to residential tenancies. In 1997, the legislature effectively imported Part IV into the new Tenant Protection Act, 1997, S.O. 1997, c. 24. Parts I III of that Act were subsumed into what was renamed the Commercial Tenancies Act, R.S.O. 1990, c. L.7.

Note 5: See Ontario, Legislative Assembly, Official Report of Debates (Hansard), Standing Committee on General Government, August 5, 6, and 7, 1997.

Note 6: Section 161 of the Act applies to land lease homes, as well as to mobile home parks, with necessary modifications, by virtue of s. 152(2) of the Act.

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