Hastings, 2014 ONSC 2421
DIVISIONAL COURT FILE NO: DC-12-000492-00
DATE: 20140506
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
MATLOW, KITELEY and WHITAKER JJ.
B E T W E E N:
Catherine Coburn and Roy Coburn
Applicants/Appellants
- and -
Tenants of 152 Concession 11 Road West, Hastings, Ontario
Respondents
Joseph Hoffer,
for the Applicants (Landlords)
Jason Schmidt,
for the Respondents (Tenants)
HEARD at Oshawa: March 4, 2014
WHITAKER J.:
Introduction
[1] The appellants are residential landlords (the “landlords”). The respondents are tenants in the landlords’ residential rental property. Most of the tenants live in their own mobile homes and rent sites from the landlords in a mobile park.
[2] The landlords brought an application to the Landlord and Tenant Board (the “Board”) seeking an order that the residential rental property occupied by the tenants was exempt from certain statutory rent control restrictions.
[3] The tenants opposed the application.
[4] Following the hearing, the Board held in favour of the tenants’ position. The Board determined the rent control provisions did apply to the property. In response to a request for review, a Board (differently constituted) concluded that that interpretation was reasonable.
[5] The landlords appealed the orders to this court.
[6] For reasons which follow the appeal is dismissed.
Overview
[7] The landlords purchased the land in question in the fall of 1993. Their intention was to develop the property as a trailer park. Seasonal trailers began using the park in 1994. The property has operated year-round as a trailer park since 2001.
[8] At the time of the landlords’ purchase there were two abandoned permanent buildings on the property. One building had been used as a washroom and the other, at some point, as a residence, and at another point, as a store. The latter building called the “bungalow” had been used for residential purposes before 1991.
[9] David Martin testified on behalf of the tenants. He stated that he personally lived in the bungalow from 1978 to 1980, paying $125 monthly rent.
[10] On June 2, 2011 the landlords applied to the Board for an order exempting the property from rent control. The landlords argued that the exception to rent control provisions in section 6(2)(c) of the Residential Tenancies Act, 2006, SO 2006, c 17 ( the “Act”) would apply as the land was not used as a trailer park before November 1, 1991.
[11] The landlords’ application was heard on October 18, December 16, 2011 and February 28, 2012.
[12] Both landlords and tenants attended the hearing and called historical evidence dealing with the past use of the park and the bungalow. The landlord and some of the tenants were represented by counsel.
[13] In the decision dated March 28, 2012, the Board summarized its significant findings:
▪ the complex was a mobile home park and a land lease community for purposes of section 2 of the Residential Tenancies Act, 2006, SO 2006, c 17;
▪ a portion of the park was used for residential purposes before November 1, 1991; and
▪ the complex is not exempt from rent control under section 6(2)(c) of the Act.
[14] On September 28, 2012, the landlords sought a review of the decision pursuant to s. 209(2). The review was heard on the basis of written submissions and the review decision was provided on October 4, 2012. With reasons, the Board dismissed the application. The Board found there to be no serious errors in the order or in the proceedings and found that the interpretation of s. 6(2)(c) was well reasoned and was reasonable.
[15] The landlords appealed to this Court on November 2, 2012.
Issues to be Decided
[16] There are two issues to decide: (i) what is the appropriate standard of review? and, (ii) do the Board’s decisions withstand review on the appropriate standard?
Standard of Review
[17] Section 209(1) of the Act is a privative clause which provides that an order of the Board is final and binding.
[18] Section 210 (1) of the Act permits an appeal of an order only on a question of law.
[19] In Dunsmuir v. New Brunswick 2008 SCC 9, [2008] 1 S.C.R. 190 the Supreme Court of Canada indicated that there are only two standards of review: correctness and reasonableness. Where an expert tribunal is considering its home statute, the review is on a reasonableness standard.
[20] More recently, in Alberta (Information and Privacy Commissioner) v. Alberta Teachers' Association, 2011 SCC 61, [2011] 3 SCR 654, the Supreme Court noted that the standard will rarely be one of correctness.
[21] The Ontario Court of Appeal in First Ontario Realty Corporation Ltd. v. Deng, 2011 ONCA 54, indicated that when the Board was interpreting and applying its home statute, the Board was entitled to deference and the standard of review was one of reasonableness.
[22] The standard of review here is one of reasonableness.
Analysis
[23] There is one serious issue of law between the parties. That is whether section 6(2)(c) of the Act applies. If it does, then rent control does not apply. If it does not apply, then rent control applies.
[24] Section 6(2)(c) is as follows:
Sections 104, 111, 112, 120, 121, 122, 126 to 133, 165 and 167 do not apply with respect to a rental unit if, . . .
(c) no part of the building, mobile home park or land lease community was occupied for residential purposes before November 1, 1991.
[25] The landlords read section 6(2)(c) to mean that the rent control provisions in sections 104, 111, 112, 120, 121, 122, 126-133, 165 and 167 do not apply if the property was not used as a trailer park before 1991.
[26] On this theory, as there was no trailer park before 1991, rent controls do not apply.
[27] The tenants read the provisions of section 6(2)(c) to mean that if any part of the property was used for residential purposes before 1991 (like the bungalow did) then rent controls apply.
[28] Both parties relied on policy arguments in support of their proposed interpretations. The landlords suggested that the Act is designed to draw tenants into rental property and then permit a movement from rent control to market value rentals.
[29] The tenants argued that the Act is designed to protect tenants from unreasonably high market rental prices and not to permit a move to market value.
[30] These competing policy visions need not be resolved in the disposition of this matter.
[31] In interpreting the provisions of the Act, the plain language meaning of the words and terms should be construed in the context of the entirety of the statute.
[32] Applying this analysis, the tenants’ suggested interpretation of section 6(2) in its plain language reading is reasonable. Under section (c) of section 6(2), the list of three types of premises includes the term “the building” in which case the bungalow would fall into the category of “building” and there would be no exemption from rent control.
[33] On a standard of reasonableness, the Board’s order and its construction of the terms of the Act, fall within the range of reasonable outcomes. Put another way, it certainly cannot be said to be unreasonable.
[34] The Board’s decisions are intelligible, transparent and justifiable.
Outcome
[35] The appeal from both orders is dismissed.
[36] Counsel provided costs outlines subject to outcome. Counsel for the tenants’ fees total is $10,260.40 which reflects 45.4 hours at $200 per hour together with disbursements in the amount of $2,341.53 and HST of $1,341.66. Counsel for the landlords’ fees reflected 98.30 hours at partial indemnity rates totalling $16,973.50 and at the actual rate totalling $23,591.00 together with disbursements in the amount of $12,953.46 and HST of $1607.64. The disbursements are high because copies of documents had to be served on many tenants, not all of whom were represented by counsel.
[37] The tenants were successful and are entitled to costs. In comparing the costs outline, the amount sought on their behalf is reasonable and within the contemplation of the parties. The appellants shall pay costs fixed in the amount of $13,731.93.
Whitaker J.
Matlow J.
Kiteley J.
Date:
Hastings, 2014 ONSC 2421
DIVISIONAL COURT FILE NO: DC-12-000492-00
DATE: 20140506
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
MATLOW, KITELEY and WHITAKER JJ.
Catherine Coburn and Roy Coburn
Applicants/Appellants
- and -
Tenants of 152 Concession 11 Road West, Hastings, Ontario
Respondents
REASONS FOR JUDGMENT
Whitaker J.
Matlow J.
Kiteley J.
Released: May 6, 2014