Chenard v. Foster, 2007 CanLII 51698 (ON SCDC)

COURT FILE NO.: 07-DV-1284

DATE: November 29, 2007

SUPERIOR COURT OF JUSTICE – ONTARIO (DIVISIONAL COURT)

RE: EDMUND and MURIEL CHENARD et al and ELAINE FOSTER et al

BEFORE: Cusinato J., Valin J., and Shaw J.

COUNSEL: John E. Summers for the Appellant

June L. Carter for the Respondent

E N D O R S E M E N T

1The appellants are tenants in a land-lease community located near Carleton Place, Ontario, which is owned by the respondents. The four respondents are siblings. The subject property has been owned by their family for the past 175 years. It consists of 350 acres with frontage on Lake Mississippi. A large portion of the land is designated as flood plain. All of the structures owned by the appellants are located within the flood plain. All but one of those structures are occupied seasonally.

2The respondents wish to occupy the lands for their personal use to build retirement homes. The Lanark Land Division Committee granted severances to the respondents and imposed conditions before the severances can be registered. The conditions include removing the appellants and their structures from the land. The respondents cannot proceed with their plans for the property until that happens. Other than removing the appellants’ structures, the respondents can fulfill the remaining conditions with relative ease.

3The respondents applied for an order to terminate the tenancies of the seventeen appellants. Following a hearing, the Rental Housing Tribunal (The “Tribunal”) issued seventeen decisions terminating the tenancies of each of the appellants. This is an appeal from those decisions. For the purposes of the appeal, all of the decisions are being treated as one, as they are identical.

4The Tribunal’s decision that is being appealed ordered the following:

(a) the tenancies between the respondents and the appellants are terminated;

(b) the appellants must vacate their rental units on or before October 31, 2008;

(c) if the rental units are not vacated by October 31, 2008 then starting November 1, 2008 the respondents may file the order with the Court Enforcement Office to enforce the eviction; and

(d) upon receipt of the order, the Court Enforcement Office is directed to give vacant possession of the rental units to the respondents on or after November 1, 2008.

5Given that the decisions of the Tribunal may only be appealed on a question of law, the standard of review is correctness.

6The issues raised on the appeal are:

(i) whether the respondents required the lands in good faith within a reasonable time (s. 51(1) of the Tenant Protection Act (the “Act”));

(ii) if so, were the respondents in violation of the duties under the Act requiring the Tribunal to dismiss the application (s. 84(2)(a) and s. 110(1) of the Act); and

(iii) if the respondents were not in violation of their duties, did fairness dictate that the applications be dismissed (s. 84 (1) of the Act).

7The underlying issue with respect to each of those issues is whether the Tribunal conducted the analysis required by the Act.

8Having regard to the first issue, the requirements of s. 51(1) of the Act are that the lands are wanted and genuinely intended to be occupied as a residence at once, or at any rate within a reasonable time. Salter v. Beljinac [2001] D.L.R. (4th) 744 (Ont. Div. Ct.).

9What constitutes a reasonable period of time depends upon the circumstances of each case. In the present circumstances, the respondents must have the appellants’ structures removed from the property before they can finalize the severance and begin building their homes on the land. To finalize the severances, a condition is that the appellants’ structures be removed and the severances registered within one year of the date of the severance. As such, it was necessary for the respondents to apply for termination immediately after obtaining the Land Division Committee decision. They cannot proceed with their plans without the severances, and the severances cannot be registered until the appellants’ cottages are removed.

10As soon as the appellants’ structures are removed, the respondents will in fact be “occupying” the lots for the purposes of their residential occupation in that they will be taking all of the necessary steps to build the homes for them to live in. While the respondents’ homes cannot be built instantaneously, they will still be occupying the land for that purpose.

11There is a necessary period of time between the evictions and when the respondents can occupy the land that is dictated by planning laws that are completely outside of their control.

12The Tribunal acknowledged that the respondents still had to finalize the severance and meet the conditions before they could follow through with their plans to occupy the premises. That is, at least in part, why the Tribunal delayed the eviction. The Tribunal stated at paragraph L:

“I turned my mind to writing an interim order which would postpone any further development until certain other things were completed, but I find this to be onerous and uncertain, so I will proceed by writing a final order with a definite date for termination, to allow for certain and orderly vacating of the rental units. This will also allow the Landlords to proceed with their plans in a sure and certain order and time.”

13We are of the view that the Tribunal was satisfied that the respondents required the lands in good faith within a reasonable period of time within the meaning of s. 51(1) of the Act.

14With respect to the second issue, this court held in Puterborough v. Canada (Public Works & Government Services) [2007] 55 R.P.R. (4th) 189 (Ont. Div. Ct.) that the landlord must be in serious breach of its responsibilities at the time of the hearing. This subsection is not triggered by the landlord having been in serious breach of responsibilities at some point in the past. Nor is it triggered by the potential as of the date of the hearing that the landlord will be in serious breach at some time in the future.

15The Tribunal conducted the hearing on October 5, 6 and 7, 2006. During the hearing, the appellants made allegations that the respondents had failed to maintain the roads in a good state of repair, to remove snow from the roads, and to maintain the water supply and sewage disposal in a good state of repair.

16The Tribunal considered these allegations and concluded that, on the evidence, the appellants were unsuccessful in establishing that the respondents were in serious breach of their obligations to maintain and repair.

17Having regard to the third issue, s. 84(1) of the Act provides:

Upon an application for an order evicting a tenant or subtenant, the Tribunal may, despite any other provision of this Act or the tenancy agreement,

(a) refuse to grant the application unless satisfied, having regard to all the circumstances, that it would be unfair to refuse; or

(b) order that the enforcement of the order of eviction be postponed for a period of time.

18The appellants submit that the Tribunal failed to engage in an adequate analysis of its obligations under this section. The Tribunal considered the appellants’ arguments that they have invested in the structures on the leased lots, and that they very much enjoy the land. Given the findings of fact against the appellants, it was reasonable for the Tribunal not to exercise its discretion to refuse the eviction.

19Indeed, after considering all the facts, the Tribunal exercised its discretion in favour of the appellants by postponing the enforcement of the eviction order for a period of 22 months from the date of the order.

20The appeal is dismissed with costs to the respondents in the amount of $7,500, inclusive of GST and disbursements.