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.

SOT-53732-14-RV (Re), 2015 CanLII 24247 (ON LTB)

21. In Putnam v. Grand River Conservation Authority 2006 CanLII 18526 (ON SCDC), the Divisional Court considered the Tribunal’s interpretation of section 3(a) of the Residential Tenancies Acts predecessor, the Tenant Protection Act. The Court found the Tribunal’s interpretation, that living accommodation occupied as temporary or seasonal residence is only exempt if it is part of the named and listed types of accommodation, to be correct. In this case, a campground and a trailer park are part of the named and listed types of accommodation.

23. In TNL-58688-14 the Board found that the Act applied to a trailer in which the occupant had occupied the site throughout the year. Despite the fact that the parties agreed that “the intended use for the specified site is for recreational vacation purposes” and that “the campground or trailer park is designed for seasonal or temporary use”. The Member looked at the real substance of the transaction and found that “the mobile homes are occupied by their owners during all seasons of the year”.

25. Similarly, CET-09245-10 found the Act applied to cabins that were used year round, and “the lease did not restrict when the cabins could be used”. The evidence before the Member was that the cabins had been used periodically by the tenants year round.

26. In CET-05018-10, the Board found that a 5 month term for a tenancy did not mean that the living accommodation was intended to be temporary. However, in this case, the Member also found that the living accommodation was not in a hotel, motel, etc., which would disqualify the Landlord from falling under the exemption pursuant to the Putnam analysis found above. The order did not specifically address the issue of seasonal occupation.

27. In SWT-65538-14 the Board dealt with a mobile unit located in a park for 18 years, during which successive seasonal Licence agreements were entered into each year. The Member found the Act does not apply and distinguished Algoma on the basis that the licences are annual and define the seasonal nature of the contract, the fee is payable only over the season, and a separate storage fee is assessed for off-season storage. This case is the most similar in fact to the case at hand.

28. SWT-68358-14 also deals with a seasonal park in which trailers are placed on sites, they are used during much of the year, and the park is closed during the winter months. In finding that the Act did not apply, the Board rejected the Applicant’s argument that the relationship should be construed as a Landlord and Tenant relationship because it is theoretically possible to reside in the trailer year round.

29. In the case at hand, the site is located in a campground and is therefore a part of the named and listed types of accommodation found in subsection 5(a). The licence is clearly intended to be seasonal as the intent of the parties is that the park may not be used year round as a residence, and it has not been so used. The seasonal nature of the complex is further reinforced by a separate storage contract for the winter months, the inability of the licence holder to gain access in the winter without the permission of the Respondent, and the lack of water service to the site over the winter.

30. Accordingly, I find that the living accommodation is intended to be occupied for a seasonal period in a trailer park and is therefore exempt from the Act.

TET-56570-15-RV-IN3 (Re), 2017 CanLII 49054 (ON LTB)

93. The exemption the Landlord seeks to rely on reads as follows:

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;

[Emphasis added.]

94. The wording of the exemption has been interpreted to include two different situations: where the accommodation is intended for the travelling or vacationing public; or for a seasonal or temporary period. (See: Rogers v. Fisherman’s Cove Tent & Trailer Park Ltd., (2002) O.J. No 5942 (Ont. Div. Ct.).) In either situation the property itself must be one of the listed types.

95. There is no dispute between the parties that the property here is one of the listed types of property in s. 5(a). Some may refer to it as a tourist camp, some call it a resort, some call it a campground, and some refer to it as a trailer park. It does not matter which of these terms is more accurate as everyone agrees at least one of them applies.

96. There is also no dispute that the fact that the land is zoned for temporary or seasonal use only is also not determinative. Municipal zoning does not oust application of the Act. (See: Fraser v. Beach, 2005 CanLII 14309 (ON CA)).

TET-56570-15-RV-IN3 (Re), 2017 CanLII 49054 (ON LTB)

141. Absent the phrasing in the Licences of Occupation referring to the units as “recreational accommodation” there actually is no evidence before the Board in support of the proposition that anyone intended the use of these units to be for members of the vacationing or travelling public.

142. Further, there is no blanket exemption for recreational use so the use of the phrase “recreational accommodation” in the Licences of Occupation is not determinative. In Matthews v. Algoma Timberlakes Corporation, 2010 ONCA 468, which both parties rely on, the Court of Appeal states at paragraphs 28 and 29:

[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 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 the particular area do not mean that the rental units are not residential within the meaning of the Act.

143. And as stated above, the Landlord does not actually rely on this first branch of the test in s. 5(a); it relies on the second, which gives rise to the next question – does the evidence support a finding that it is more likely than not that the parties intended the use of the Tenants to be temporary or seasonal?

144. I am aware that there is some support in the case law for the proposition that intent is irrelevant for this second branch of the test, all that matters is actual use. (See for example: Putnam v. Grand River Conservation Authority, 2006 CanLII 18526 (ON SCDC).) For my purposes here, it is not necessary to engage with this issue and in fact would be unhelpful. I say this in part because I agree with the Landlord that the unilateral act of one party to a tenancy agreement cannot change the nature of the agreement.

145. The difficulty the Landlord faces with respect to the second branch of the test is the words used in the Act; namely, “temporary” or “seasonal”.

148. This difficulty with the plain language meaning of the words “seasonal” and “temporary” is reflected in the Licences of Occupation themselves. The various later versions of the exemption clause attempt to redefine “seasonal” and “temporary” as meaning four seasons a year and 365 days a year, but with the simple exclusion of continuous use. The fact that the Licences of Occupation attempt to redefine these terms does not change the meaning the Legislature intended them to have.

149. In other words, the wording of the exemption clause in the Licences of Occupation explicitly sends a very mixed message. It uses words like “temporary” and “seasonal” and “recreational accommodation” but then also refers to all four seasons and 365 days a year. The only real exclusions are with respect to continuous use over a 12 month period and the definition of principal residence under the Income Tax Act.

150. As there is no evidence the concept of a principal residence under the Income Tax Act was ever explained to any of the Tenants, the evidence does not support the conclusion that the bare existence of the Licenses of Occupation means that the intended use was temporary or seasonal. Rather, the logical conclusion to draw is that the wording of the Licences of Occupation was an attempt to comply with the zoning requirement on the one hand while simultaneously maintaining the customer basis of people like the Tenants who wanted a permanent home but were prepared to agree to spend one day a year elsewhere.

151. Given all of the above I am not satisfied that it is more likely than not that the parties intended the Tenants’ use of their homes to be on a temporary or seasonal basis nor are they in fact used in such a manner.

152. Therefore, s. 5(a) does not apply to exempt from the Act the tenancies of the Tenants who testified before the Board. An order shall issue accordingly.