Letter to The Ontario Ombudsman

{Sent 2016-04-20}
I take issue with the miscarriage of justice being perpetrated by the Land Lord Tenant Board. As a one time thing I would not have gotten involved, but this seems to be a standard protocol as indicated below. They appear to have their own agenda in their interpretation of the RTA that is definitely prejudicial to the tenant that they are mandated to protect. There are four notable cases that I present as evidence. What is presented here is just the basics. The detail on the second two can be found at the links provided below. These links are the decisions of the LTB interlaced with my comments, with direct quotes from the RTA and the higher court appeals that reversed the LTB decisions.

In the first two:
Putnam v Grad River Conservation Authority, and
Mathews v Algoma Timberlake
the LTB ruled that the RTA did not apply, quoting exclusion Rule 5(a)
The appeal court said that exclusion rule 5(a) was not applicable and that the RTA did apply in these situations.

In the second two
  Luis Dos Santos v Green Acre RV Park – Order_SWT-68358-14
John and Maria Saraiva v Paul Bunyan Trailer Camp Limited – Order SWT-65538-14

the LTB ruled that the RTA did not apply quoting Rule 5(a), ignoring the rulings in Putnam and Mathews.
These were not appealed, and I suspect that the cost was prohibitive. I hold the opinion that the LTB got what they wanted, and hoped that an appeal would not happen.

Purposes of Act (RTA)

  1. From The RTA : 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.  2006, c. 17, s. 1.
  2.  From Mathews v Algoma Timberlake : 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 “€œrecreational”€ purposes to the s. 5 list of premises to which the Act does not apply.
  3. There are definitions used below that were taken from Termium Plus, The Canadian Governments Terminology Database   http://www.btb.termiumplus.gc.ca/tpv2alpha/alpha-eng.html?lang=eng
  4. From Mathews: 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 “€œrental unit”€.
    (a) Rental unit

    [24] The definition of a “€œrental unit”€ in s. 2(1) contains two components. First, the unit must be “€œliving accommodation”€. Second, it must be used or intended for use as “€œrented 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 “€œa provision in a tenancy agreement that is inconsistent with this Act or the regulations is void”€. Section 202 requires the Board to “€œascertain the real substance of the activities”€ relating to the rental unit and to do so disregarding “€œthe 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 “€œrental unit”€.

    Statutory Definition of Rental Unit from the RTA

    “€œrental unit” means any living accommodation used or intended for use as rented residential premises, and “€œrental 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

    This definition has no conditional riders that would limit the effective meaning to recreational, seasonal or temporary period.


Exemptions from Act

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;

From the Putnam Decision, and confirmed in Mathews:
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.

Additionally – Not from any of the above cases (Something I found doing research)

From Termium Plus:( Official Canadian Government Terminology Database)

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.

With these definitions in play, Exclusion Rule 5(a) is not applicable to a “land lease home” or “rental unit” as defined in th RTA.

Another Rule that the LTB has been misusing is 202

LTB Decision: 5. Section 202.(1) of the Act directs the Board to ascertain the real substance of all transactions and activities related to”€ a rental unit or in this case when determining whether the agreement creates a landlord and tenant relationship over which the Board may exercise its jurisdiction. In so doing the Board looks first to the written agreement between the parties.

This is a blanket license that allows the LTB to be add their own spin to rule against the tenant.

Again the LTB ignores the sections that they don”€™t like and focus on those areas that conform to their own agenda.
ie: 202(1)(b) asks the board to regard the pattern of activities  relating to the rental unit., which they have ignored. 202 makes no mention of the written agreement, which is void if it conflicts with the RTA, but to look at all transactions and activities. I see no mention of pattern of activities

transactions and activities encompass a lot more than just the written agreement and only those sections not conflicting with the RTA are relevant

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

The Board has failed to provide a list of activities that is inconsistent with a rental unit per subsection (b)

To clear up the confusion and remove the temptations from the LTB, I would suggest a revision to RTA Rule 5(a) as follows.

5(a)(1) living accommodation intended to be provided to the travelling or vacationing public
5(a)(2) living accomodations provided by a landlord intended to be 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;

This is consistent with the ruling in Putnam and confirmed ti Mathews

The information provided here and on the links provided is my own personal opinion.
It is up to the reader to ascertain for themselves the validity of the information provided here.

Is there anything the Ombudsman’s office can do with a situation as described  here.