Copeland & Soucie v. H.M.Q., 2014 ONSC 620
CITATION: Copeland & Soucie v. H.M.Q., 2014 ONSC 620
DIVISIONAL COURT FILE NO.: 251/13
DATE: 20140128
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
KITELEY, NORDHEIMER & RADY JJ.
BETWEEN:
LEONARD COPELAND and DANIELLE GENEVIVE SOUCIE (and the persons listed in Schedule “A” to the Notice of Application)
Applicants
– and –
HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO as represented by the MINISTER OF NATURAL RESOURCES
Respondent
D. Kirwin & K. Peacocke, for the applicants
L. Favreau & J. Parker, for the respondent
HEARD at Toronto: January 14, 2014
REASONS FOR JUDGMENT
NORDHEIMER J.:
[1] This is an application for judicial review in which declaratory relief is sought respecting the applicability of the Residential Tenancies Act, 2006, S.O. 2006, c. 17 (“RTA”) to land leases held by the applicants in Rondeau Provincial Park.
[2] The applicants comprise two hundred and eighty-five cottage owners who own cottages situated on land leased by them from the Government of Ontario. Such cottages have been leased in Rondeau Provincial Park going back to 1894. The cottages are all permanent structures intended to be occupied for residential purposes. They contain living and sleeping quarters along with kitchens and bathrooms. The most intensive use of the cottages occurs during the months of May through September but most of the cottages are insulated and therefore can be used during the winter months. The terms of the leases, however, preclude the cottages from being used for year-round accommodation.
[3] In 1986, the Government of Ontario through the Minister of Natural Resources made a decision to bring the presence of the cottages in the Park, and therefore the land leases, to an end. It did so by providing in each lease as it was renewed that the lease would terminate on December 31, 2017. It also passed a regulation, the current version of which is O. Reg. 347/07 under the Provincial Parks and Conservation Reserves Act, 2006, S.O. 2006, c. 12 (“PPCRA”). Section 13(2) of that regulation reads:
No person shall occupy land for non-commercial residential purposes in Algonquin or Rondeau Provincial Park except under a lease granted before July 2, 1954 or a renewal or extension of such a lease that does not extend beyond December 31, 2017.
[4] Notwithstanding the express terms of the existing leases that include this termination date, the applicants now contend that the RTA applies to their leases. If that contention is correct, the applicants further contend that the termination date is invalid because it conflicts with the express provisions of the RTA. Central to both of these contentions is the assertion that the RTA applies to the land leases held by the applicants with the Government of Ontario.
Does the Divisional Court have jurisdiction?
[5] Before turning to the main issue, however, it is necessary to deal with a preliminary issue raised by the respondent. The respondent contends that this court has no jurisdiction to entertain this application for judicial review. Rather, the respondent says that the issues raised by the applicants should be dealt with by the Landlord and Tenant Board under the RTA or by a single judge of the Superior Court of Justice under rule 14.05 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, or by a combination of both.
[6] The relevant statutory provisions begin with s. 2(1) of the Judicial Review Procedure Act, R.S.O. 1990, c. J.1, that reads:
On an application by way of originating notice, which may be styled “Notice of Application for Judicial Review”, the court may, despite any right of appeal, by order grant any relief that the applicant would be entitled to in any one or more of the following:
Proceedings by way of application for an order in the nature of mandamus, prohibition or certiorari.
Proceedings by way of an action for a declaration or for an injunction, or both, in relation to the exercise, refusal to exercise or proposed or purported exercise of a statutory power.
It is s. 2(1)2 that is applicable here.
[7] One must then turn to s. 1 of the Judicial Review Procedure Act for the definition of a statutory power. Statutory power is defined as:
“statutory power” means a power or right conferred by or under a statute,
(a) to make any regulation, rule, by-law or order, or to give any other direction having force as subordinate legislation, …
[8] The applicants seek four declarations:
(a) an order declaring that the Crown leases are subject to the RTA;
(b) an order declaring that the expiry date of the leases is void and unenforceable;
(c) an order declaring that section 13(1) of O. Reg. 347/07 is ultra vires;
(d) an order declaring that as of January 1, 2018 the applicants’ tenancies will continue on a month-to-month basis.
[9] The respondent submits that three of the four declarations relate to the applicants’ rights under their land leases and whether the RTA applies to those land leases. None of those declarations relate to a regulation. The third declaration is whether O. Reg. 347/07 is ultra vires. While the respondent admits that this court has jurisdiction to review the exercise of a statutory power to make a regulation, it contends that the declaration sought does not fall within that jurisdiction because the declaration of invalidity does not relate to the authority to make the regulation but, instead, to whether the regulation conflicts with another statute and is therefore inoperable. The respondent adds to this submission that for the conflict to exist, the RTA must apply to land leases and that issue is not a matter for judicial review. Indeed, the respondent submits that the Landlord and Tenant Board has the “exclusive” jurisdiction to decide that issue.
[10] I will begin by saying that the respondent’s argument in this regard is a very technical one that does not, in any way, address the merits of the issues raised by the applicants. I would note that, if the respondent is correct in its position, it does not end the issue. It would simply force the applicants to re-launch their application in one or more other venues. If the respondent’s argument succeeds, the only accomplishments would then be delay and additional expense. It is the type of overly legalistic argument that governments should strive to avoid when they are responding to issues involving the rights of a group of its citizens in relation to the exercise of government powers, unless the jurisdictional issues are clear and compelling
[11] Nonetheless, I accept that, if this court does not have jurisdiction to decide the issues raised in this application, then it cannot do so. We should only get to that result, however, if it is clear that no jurisdiction exists since it is in the best interests of both parties to determine the issues in the most expeditious and least expensive manner. That goal is one of the principal objectives of the Rules of Civil Procedure – see subrule 1.04(1). Dealing with these issues now would also avoid a multiplicity of proceedings which is a stated objective of the Courts of Justice Act, R.S.O. 1990, c. C.43, s. 138. Both of these are, of course, government mandated objectives.
[12] In any event, I do not agree with the respondent’s position. Central to the issues raised here is whether the Government is entitled to unilaterally bring the land leases to an end. Whether it was required to do so or not, it chose to achieve that objective, at least in part, through the passing of a regulation under a Provincial statute. The validity of that regulation is therefore at the core of the issues raised in this application. Governments only have the power to make valid regulations. There is no government power to make an invalid regulation. Therefore, when the validity of a regulation is raised, it necessarily raises the issue whether the Government had the power or right to make the regulation. As the other declarations sought are directly related to the exercise of that power or right, if the validity of the regulation comes within the jurisdiction of this court, then those issues also come within our jurisdiction if they are necessary adjuncts to the determination of the validity of the regulation.
[13] On this point, the respondent relies heavily on Tranchemontagne v. Ontario (Director, Disability Support Program), 2006 SCC 14, [2006] 1 S.C.R. 513. In my view, that reliance is misplaced. Tranchemontagne involved the ability of a tribunal, deciding issues within the scope of its authority, to apply the provisions of the Human Rights Code to its decisions. Those provisions were expressed as having primacy over all other legislative enactments. The Supreme Court of Canada concluded that the tribunal was obliged to consider the provisions of the Human Rights Code in reaching its decisions.
[14] Here we are not dealing with the wide-ranging application of a legislative enactment. Rather, we are dealing with a sole purpose regulation. The purpose of O. Reg. 347/07 is to end the residential occupation of land within two provincial parks. If the regulation is “inoperable” for that purpose, it has no other function. The regulation becomes completely ineffective in its stated purpose. Whether one chooses to characterize the regulation as “inoperable”, as the respondent does, or “invalid”, as the applicants do, the result is the same. The applicants’ position, at its core, is that the government does not have the power to pass a regulation the effect of which is to bring their occupation of land in the Rondeau Provincial Park to an end. The applicants say that the government does not have that power because to do so would involve the government in enacting a regulation that conflicts with existing legislation, namely, the RTA. The government cannot pass subordinate legislation that conflicts with another Act of the Legislature – see Friends of the Oldman River Society v. Canada (Minister of Transport), 1992 110 (SCC), [1992] 1 S.C.R. 3 at para. 42 (Q.L.) ; Assn. of Professional Engineers of Ontario v. Ontario (Minister of Municipal Affairs & Housing) (2007), 2007 17629 (ON SCDC), 284 D.L.R. (4th) 322 (Ont. Div. Ct.).
[15] It is difficult to see how the applicants’ position can be said to involve anything other than the determination whether the government had the “power or right” to make O. Reg. 347/07. I am satisfied therefore that this court has jurisdiction to decide whether the third declaration sought should be granted.
[16] Following from that, it became apparent during the course of the argument on the jurisdiction issue that, in deciding whether the government had the right or power to make O. Reg. 347/07, it would be necessary to also determine whether the RTA applies to the land leases. This becomes necessary because the applicants are not asserting that O. Reg. 347/07 is, by itself, an invalid or ultra vires regulation. Rather, the applicants assert that O. Reg. 347/07 is invalid or ultra vires because its terms conflict with the RTA. If the RTA does not apply to the land leases, then the conflict does not arise and O. Reg. 347/07 achieves its stated objective. Indeed, the applicants concede that, if the RTA does not apply to the land leases, their position cannot succeed.
[17] There is another issue I must address and that is the respondent’s assertion that the Landlord and Tenant Board has “exclusive” jurisdiction to determine the application of the RTA. The respondent relies on s. 9 and s. 168 of the RTA for this assertion. Section 9(1) reads:
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;
(b) any other prescribed matter.
It will be evident from the wording of s. 9(1) that the provision is permissive. It is not mandatory. The section on its face does not purport to make the Board the exclusive determiner of the application of the RTA.
[18] Section 168(2) also does not get the respondent to its goal. Section 168(2) reads:
The Board has exclusive jurisdiction to determine all applications under this Act and with respect to all matters in which jurisdiction is conferred on it by this Act.
[19] Again, all that s. 168(2) provides is that, if an application is properly brought under the RTA, the Board has the exclusive jurisdiction to deal with it. The fact that the Board has exclusive jurisdiction with respect to all matters conferred on it by the RTA begs the question whether a matter is conferred on the Board in the first place. One cannot assume a positive answer to that question in order to assert that exclusive jurisdiction exists. It would, of course, be an entirely different matter if either s. 9(1) or s. 168(2) used language such as “the Board has exclusive jurisdiction to determine any issue regarding the application of the Act”.
[20] Lastly on the jurisdiction issues, I will deal briefly with the respondent’s alternative argument that, if the Board does not have exclusive jurisdiction to determine the applicability of the RTA, the issue should be determined by a single judge of the Superior Court of Justice under subrule 14.05(3)(d) of the Rules of Civil Procedure. Subrule 14.05(3)(d) reads:
A proceeding may be brought by application where these rules authorize the commencement of a proceeding by application or where the relief claimed is,
(d) the determination of rights that depend on the interpretation of a deed, will, contract or other instrument, or on the interpretation of a statute, order in council, regulation or municipal by-law or resolution; …
[21] I accept that, if the applicants were only seeking a determination of whether the RTA applied to the land leases, the appropriate route would be an application under subrule 14.05(3)(d). But that is not the only relief that the applicants seek. The applicants must, of necessity, seek to invalidate O. Reg. 347/07 in order to achieve their goal of being able to remain in occupation of the lands covered by their land leases past December 31, 2017. As I have already concluded, any determination respecting the power or right to make a regulation is a matter that is exclusively within the jurisdiction of the Divisional Court. If, in determining that issue, this court must also interpret a statute, we are authorized to do so as a necessary step in the proper determination of the matter over which we have jurisdiction.
[22] I would also point out, from an entirely practical point of view, that, even if the respondent’s argument was correct, each member of this panel is a judge of the Superior Court of Justice. Indeed, it is our position as judges of the Superior Court of Justice that qualifies us as judges of the Divisional Court – see the Courts of Justice Act, s. 18(3). In theory, there is nothing that would prevent any one of us from exercising our authority as a single judge of the Superior Court of Justice to determine the related issue within this application if that division of authority was required.
Does the Residential Tenancies Act, 2006 apply?
[23] Turning then to that issue, the respondent does not appear to dispute that the RTA would govern the land leases but for the fact that the land leases are held by the Crown. Even if it did not, the issue is no longer open for debate since the decision in Matthews v. Algoma Timberlakes Corp. (2010), 2010 ONCA 468, 102 O.R. (3d) 590 (C.A.) determined that the RTA applies to premises occupied for recreational purposes. In that case, the Court of Appeal concluded that premises used for recreational purposes were residential properties for the purposes of the RTA notwithstanding the seasonal nature of the occupation of those premises.
[24] The real issue is whether the RTA applies to the Crown. On this issue the applicants must overcome two significant obstacles. One is s. 71 of the Legislation Act, 2006, S.O. 2006, c. 21, Sch. F, and the other is the decision of this court in Wheeler v. Ontario (Ministry of Natural Resources) (2005), 2005 13039 (ON SCDC), 75 O.R. (3d) 113 (Div. Ct.).
[25] In terms of the first obstacle, s. 71 of the Legislation Act reads as follows:
No Act or regulation binds Her Majesty or affects Her Majesty’s rights or prerogatives unless it expressly states an intention to do so.
It is common ground that there is no express provision in the RTA stating that the Crown is bound by that statute.
[26] The applicants attempt to avoid the application of s. 71 in two ways. First, they contend that the RTA expresses the intention to bind the Crown because it provides, in s. 3(1), that the RTA applies to rental units in residential complexes “despite any other Act” and it provides in s. 3(4) that if a provision of the RTA conflicts with a provision of another Act, the provision in the RTA prevails. The applicants seek to buttress their argument in this regard by also pointing out that currently, as opposed to earlier versions of the RTA, the RTA makes express reference to the Crown in s. 5(m) where it is expressly stated that the RTA does not apply to living accommodation in a residential complex in which the Crown in right of Ontario has an interest if that residential complex was forfeited to the Crown under certain proceeds of crime legislation or under the Escheats Act.
[27] The applicants further submit that s. 47 of the Legislation Act restricts the scope of s. 71 of that same statute in that s. 47 provides:
Section 46 applies unless,
(a) a contrary intention appears; or
(b) its application would give to a term or provision a meaning that is inconsistent with the context.
Section 46, in turn, provides:
Every provision of this Part applies to every Act and regulation.
[28] Lastly, on this point, the applicants submit that the totality of these considerations distinguish this case from the result in Wheeler since these matters were not considered by the court in that decision.
[29] I do not find any of these arguments persuasive on this issue. Section 71 of the Legislation Act is clear. A statute does not bind the Crown unless it expressly states an intention to do so. There is no such express provision in the RTA. The fact that the RTA is stated to apply if its provisions conflict with another statute does not constitute an express intention to bind the Crown. Section 3 of the RTA is not a provision directed at the issue of whether the Crown is bound by the statute but rather is a paramountcy provision intended to ensure that the subject matter of the RTA will prevail where it might otherwise conflict with the subject matter of another statute.
[30] Two further salient points can be made on this issue. One is that, if the Legislature had intended that the RTA was to apply to the Crown, it could have easily said so – as it did in earlier versions of the statute. The other is that the convoluted route that the applicants require us to take to get to a finding that the RTA applies to the respondent is the antithesis of an express intention.
[31] In addition, s. 47 of the Legislation Act does not assist the applicants. No contrary intention regarding the statute’s application to the Crown appears in the RTA for the reasons that I have already given.
[32] The applicants also argue that the Crown is bound by RTA under the common law of necessary implication. That common law principle does not assist the applicants. A finding that the RTA does not bind the Crown does not result in an inconsistency arising within the terms of the RTA nor does it, in any way, frustrate the objective of the RTA. As Dickson C.J.C. said in Alberta Government Telephones v. Canadian Radio-television and Telecommunications Commission, 1989 78 (SCC), [1989] 2 S.C.R. 225 at para. 123 (Q.L.):
As a result, an intention to bind the Crown is not to be inferred merely from the fact that the provisions of a statute will not operate smoothly or efficiently if the Crown is not bound, nor from the fact that if the Crown is not bound the statute will have only a limited application.
[33] In a further argument, the applicants seek to rely on the benefit/burden exception to Crown immunity. In essence, that exception provides that, if the Crown takes the benefit of a statute, then it must also accept any burdens imposed by the statute. Here, the applicants assert that the RTA must apply to the Crown because the respondent obtains the benefit of charging rent to the applicants under the PPCRA. By taking that benefit, the applicants say, the Crown constitutes itself as a landlord of residential premises and must accept the same burdens as any other landlord that are imposed by law, namely, the RTA.
[34] That assertion might have some merit if the RTA was the source of the authority to charge rent to the applicants for the leases but it is not. The respondent, as owner of the land, is fully entitled to charge rent to the applicants for the occupation of that land independent of the RTA even where that land constitutes residential premises. The source of the respondent’s authority is in their ownership of the land. The mere fact that the PPCRA sets up a regime by which rents are collected by the Minister of Natural Resources does not change the fundamental fact that the Crown is entitled to charge rents for the occupation of its lands just like any other landowner is entitled to do. While the Crown must comply with the regime that it has imposed on itself for the collection of those rents, that matter is separate and apart from the source of the authority by which it is entitled to charge those rents. There is therefore no benefit flowing to the Crown under the RTA that would require it to concurrently accept any burdens imposed by the RTA.
[35] Further, it is clear that the benefit/burden exception can only be used to conclude that legislation binds the Crown in clear cases. As Dickson C.J.C. also said in Alberta Government Telephones at para. 145:
In other words, a fairly tight (sufficient nexus) test for the benefit/burden exception follows from the strict test for finding a legislative intention to bind the Crown.
[36] I turn then to the applicants’ further argument regarding the presence of s. 5(m) in the RTA. That provision expressly exempts the Crown from the application of the RTA in certain specific situations. The applicants say that, because the Crown included this exception in the RTA, it must follow that the Crown otherwise thought or believed that the RTA bound the Crown. I do not agree. It is obvious that s. 5(m) was recently included to address a very specific issue, that is, situations where the Crown finds itself as the owner of a residential property under forfeiture legislation. It is not implicit in the inclusion of s. 5(m) within the RTA that the Crown would otherwise be bound by the provisions of the RTA. It is clearly a specific exemption provision intended to avoid arguments arising in those specialized proceedings of the very type that is being made here. It also serves to make clear to any occupants of such residential premises that the RTA no longer applies to their situation once the Crown gains an interest in the property through these specific pieces of legislation. Still further, it should be noted that, including a provision that clarifies that the Crown is exempt from certain provisions of legislation does not, by itself, establish that the Crown is otherwise bound by the statute – see again Alberta Government Telephones.
[37] In my view, none of the applicants’ arguments succeed in establishing that the RTA applies to the Crown. While the analysis may be somewhat different than that undertaken in Wheeler, the result is indistinguishable.
[38] It follows from that conclusion that the respondent was acting entirely within its authority to pass O. Reg. 347/07 and thus achieve the Province’s goal of eliminating residential occupation of park lands. The regulation is not invalidated by a conflict with other legislation because no conflict arises between the regulation and the provisions of the RTA since the RTA does not apply. It also follows that the respondent had the authority to terminate the existing leases as it has done to accord with the goal of the regulation.
[39] In light of these conclusions, it is unnecessary to consider the other issues raised, and declarations sought, by the applicants.
[40] The application is dismissed. Since the parties could not agree on costs, they may file written submissions not exceeding five pages each. The respondent shall file its submissions within five days of the date of the release of these reasons and the applicants shall file their submissions within five days thereafter.
NORDHEIMER J.
KITELEY J.
RADY J.
Date of Release: January 28th, 2014
DIVISIONAL COURT FILE NO.: 251/13
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
KITELEY, NORDHEIMER & RADY JJ.
BETWEEN:
LEONARD COPELAND and DANIELLE GENEVIVE SOUCIE (and the persons listed in Schedule “A” to the Notice of Application)
Applicants
– and –
HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO as represented by the MINISTER OF NATURAL RESOURCES
Respondent
REASONS FOR JUDGMENT
NORDHEIMER J.
Date of Release: January 28th, 2014