CITATION: Barnes v. SSI Property GP Inc., 2016 ONSC 6308
DIVISIONAL COURT FILE NO.: DC-15-691
DATE: 20161102
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
DAMBROT, SACHS and SHEARD JJ.
BETWEEN:
RONALD ROSEL BARNES and all those named in Schedule 2, attached Applicants (Appellants in Appeal)
– and –
SSI PROPERTY GP INC operating as SHERKSTON SHORES and CAREFREE RV COMMUNITIES INC. Respondents (Respondents in Appeal)
Girolamo (Gerry) Falletta, for the Applicants (Appellants in Appeal)
Leigh G. Fishleigh, for the Respondents (Respondents in Appeal)
HEARD at Hamilton: October 6, 2016
SHEARD J. (ORALLY):
[1] The Appellants appeal from the Order of the Landlord and Tenant Board (“the LTB”) Member Kevin Lundy (“Lundy”) dated December 1, 2015. Lundy issued a Review Order in respect of the Order of the LTB issued on October 9, 2015. Lundy determined that there had not been a serious error in the LTB Order of October 9, 2015. He denied the review request and confirmed the LTB Order.
[2] The issue before the LTB was whether the Respondent’s residential complex was subject to the Residential Tenancies Act, 2006 (“the RTA”) or whether it was exempt from the RTA pursuant to subsection 5 (a) of the RTA.
[3] Section 5 of the RTA states that the RTA 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, large, tourist camp, cottage or cabin establishment, inn, campground, trailer park, tourist home, bed and breakfast vacation establishment or vacation home.
[4] The LTB concluded that the residential complex offers “living accommodation occupied for a seasonal or temporary period, but the living accommodation is located within a resort vacation establishment. …The homeowners are completely reliant on the resort owner’s exercise over all of the operational, maintenance, and service controls at the park. …When the resort is closed, the applicants are restricted from accessing their homes and all of the amenities are unavailable.”
Jurisdiction and Standard of Review
[5] This appeal is governed by s. 210 of the RTA. Under that section, the appellant may appeal from an order of the LTB to this Court only on a question of law.
[6] In First Ontario Realty Corporation Ltd. v. Deng, 2011 ONCA 54 the Court of Appeal determined that on an appeal from the LTB the standard of review is reasonableness.
Analysis
[7] The Appellants argue that the Lundy and LTB orders were unreasonable on the basis that they failed to follow or apply the law as set out in Putnam v. Grand River Conservation Authority, [2006] O. J. No. 2217 (Div. Ct.) and Matthews et al. v. Algoma Timberlakes Corporation, 2010 ONCA 468.
[8] In particular, the Appellants submitted that:
Lundy and the LTB unreasonably found that the section 5(a) exemption applied because the residential complex was not "living accommodation intended to be provided to the travelling or vacationing public".
Lundy and the LTB unreasonably found that the residential complex was "occupied for a seasonal or temporary period" because the living accommodation in question was occupied for more than one season in a year.
Lundy and the LTB unreasonably found that the premises were in a resort
[9] We do not accept any of these submissions.
[10] With respect to the first submission, even if there was merit to this submission, it would not affect the reasonableness of the orders in question. The wording of the provision is clear. For the exemption to apply, the living accommodation in question must either be "intended to be provided to the travelling or vacationing public", or be "occupied for a seasonal or temporary period." In this case, Lundy and the LTB made a finding that the residential complex was "occupied for a seasonal or temporary period." Thus, it was unnecessary for them also to make a finding under the first branch of the section 5 (a) exemption.
[11] With respect to the second submission, in coming to the conclusion they did on this question, Lundy and the LTB followed the decision in Putnam. In Putnam, the premises at issue were occupied for more than one season. The Tribunal made a finding that the applicants in that case were temporary residents and the Divisional Court agreed with their analysis and found it to be correct in law (see paragraphs 25 and 26).
[12] With respect to the third submission, it does not raise a question of law.
[13] For these reasons, the appeal is dismissed.
DAMBROT, J.:
[14] Appeal dismissed for oral reasons delivered in Court.
[15] Costs to the Respondent fixed in the amount of $12,000, all-inclusive.
Sheard, J.
Dambrot, J.
Sachs, J.
Released: November 2, 2016
Schedule 2
CITATION: Barnes v. SSI Property GP Inc., 2016 ONSC 6308
DIVISIONAL COURT FILE NO.: DC-15-691
DATE: 20161102
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
DAMBROT, SACHS and SHEARD JJ.
BETWEEN:
RONALD ROSEL BARNES and all those named in Schedule 2, attached Applicants (Appellants in Appeal)
– and –
SSI PROPERTY GP INC operating as SHERKSTON SHORES and CAREFREE RV COMMUNITIES INC Respondents (Respondents in Appeal)
ORAL REASONS FOR JUDGMENT
SHEARD J.
Date of Reasons for Judgment: October 6, 2016
Date of Release: November 2, 2016