Services Board, 2022 ONSC 3905
COURT FILE NO.: CV-20-1247
DATE: 2022/06/30
SUPERIOR COURT OF JUSTICE-ONTARIO
RE: SHAUN DAVID HARVEY, Applicant
-and-
BINGEMANS INC., MARK BINGEMAN and WATERLOO
REGION POLICE SERVICES BOARD, Respondents
BEFORE: Gibson J.
COUNSEL: Shaun Harvey, Self-Represented Applicant
Edward D’Agostino, Counsel for the Respondents Bingemans Inc. and Mark Bingeman
Erin Kadwell, Counsel for the Respondent Waterloo Region Police Services Board
HEARD: March 1, 2022
ENDORSEMENT
Overview
[1] This matter concerns a dispute about a campground fence that escalated into an arrest for trespass and an eviction. It turns on the distinction between a lease and a license.
Summary of Facts
[2] The applicant Shaun Harvey (“the applicant”) works as a paralegal. He purchased a license to occupy a seasonal camping site for his 29-foot Keystone Cougar camping trailer at campsite #268a, Riverside Campgrounds, Bingemans Camping Resort at 425 Bingemans Centre Drive in Kitchener, Ontario in July 2020. The campground is owned by the respondent Bingemans Inc. (“Bingemans”) and managed by the respondent Mark Bingeman.
[3] The applicant signed a “License of Occupation” for the 2020 camping season (“Site License)” on July 4, 2020, that specified a 184-day license for a term commencing May 1, 2020 and expiring on October 31, 2020. The terms specified that the Owner agreed to license the applicant the use of site #268a commencing July 1, 2020, at a total cost of $2,120 plus HST. The applicant received a Seasonal Camper Code of Conduct 2020 (“Code of Conduct”), the Seasonal Camping Rules and Regulations for Summer 2020, with Sign-Off (“Rules and Regulations”) and a License of Occupation between Bingemans and Occupants (“License of Occupation”).
[4] The trailer, which the applicant brought to the campsite, was a temporary living accommodation where the applicant and his family could eat, shower and sleep. It was not the applicant’s permanent address, which was Unit 615, 2969 Kingsway Drive in Kitchener.
[5] The applicant erected a fence around his campsite. This became the source of dispute between the applicant and Bingemans. The fence was some 2 feet high, with metal rebar rods stuck into the ground. The applicant said that it was to keep his young children off the adjacent road through the campsite. The applicant did not seek permission from Bingemans before having the fence built.
[6] On July 26, 2020, Penny Swinston, an employee of Bingemans, spoke with the applicant about the fence. She told him that the fence was not permitted and that it had to be removed. The applicant replied that the fence had been erected for the safety of his two young children, and that it would not be removed. Later that day he sent an email to Bingemans asking for an “accommodation” under the Ontario Human Rights Code. He suggested that the relationship between himself and Bingemans was governed by the Commercial Tenancies Act (“CTA”).
[7] On July 27, 2020, Mr. Harvey agreed to remove the fence. However, on August 1, 2020, as the fence was still in place, the applicant was again asked to remove it that day. At this time the applicant was given permission by Bingemans to place an above-ground fence at the site, which was not affixed to the ground. Mr. Harvey did not remove the affixed rebar fence and, later on August 1, 2020, sent an email to Bingemans stating that he would be “keeping the fence I have for the balance of the season.” The applicant subsequently also proceeded to build a wooden 13’ x 15’ deck at the site, affixed to a trailer frame, which Bingemans considered was also not permitted by the Rules and Regulations.
[8] On August 5, 2020, Mr. Harvey received a notice letter from Bingemans regarding the fence and the deck at the site. He was informed that the fence and deck had to be removed by August 10, 2020, failing which his license to occupy would be terminated.
[9] The applicant responded with emails suggesting that Bingemans was his “commercial landlord” and accordingly their relationship was governed by the CTA. He claimed that the fence was a “human rights accommodation” and that the deck was actually a trailer. He insisted that the fence “remain undisturbed”. Following subsequent correspondence, on August 17, 2020, Bingemans served the applicant with a Notice of Termination of the License of Occupation, with the License of Occupation being terminated effective August 21, 2020.
[10] Mr. Harvey responded to the Notice of Termination, again claiming that he was protected by the CTA and therefore could not be evicted summarily. In the same email he suggested that the “land lease” might fall under the Residential Tenancies Act ,2006 (“RTA”).
[11] On August 22, 2020, the applicant received a Trespass Notice from Bingemans and was also informed that the Waterloo Regional Police Service (“WRPS”) had been given a copy of the Trespass Notice. After receiving this Notice, Mr. Harvey went to his site at the campground.
[12] On Sunday August 23, 2020, the applicant again went to the campsite. After he had been at the site for approximately one hour, he was approached by two police officers of the Waterloo Regional Police Service. They informed him that he was trespassing and would have to leave the property. The applicant says that he informed the police officers that he had a license to occupy and that they had no legal authority to require him to leave. He says that he told them that they could either arrest him or go away. They sought to explain the situation to him. Mr. Harvey told the police officers that they were not going to explain anything to him and they were either going to arrest him or “fuck off”.
[13] At this point, the police officers asked the applicant to leave the site. Mr. Harvey refused and said that he was not going to leave unless they ordered him to do so and told them that they could give him a “trespass notice otherwise you can fuck off.”
[14] As the applicant remained at the site, he was arrested, handcuffed and placed in the back of a police vehicle. He was then served with an Offence Notice for failing to leave the Bingemans’ property when directed pursuant to s. 2(1)(b) of the Trespass to Property Act.
[15] The applicant was then asked if he would leave the park. He indicated that he would, and the handcuffs were removed. The applicant then left the park.
Nature of the Application
[16] The applicant brings an application under Rule 14.05(3) of the Rules of Civil Procedure. The position of the applicant is that he had a commercial tenancy. He seeks: a declaration that the Trespass to Property Act does not apply to the applicant as a seasonal camper who has purchased a license to occupy a seasonal camping site, in a situation where all fees have been paid and the landlord has not obtained a writ of possession; a declaration that the Commercial Tenancies Act governed the relationship between the applicant and the respondents; a declaration that the police officers of the Waterloo Region Police Service exceeded their authority and conducted an illegal arrest and eviction of the applicant; and a declaration that the respondents were not entitled to a self-help remedy in removing the applicant from the campsite.
[17] The applicant is seeking general damages in the amount of $50,000 for unlawful arrest and eviction, and in the amount of $35,000 for damages to his reputation, from the respondents Bingemans Inc., Mark Bingeman and the Waterloo Region Police Services Board (“WRPSB”), the employer of the WRPS police officers who briefly arrested the applicant.
Positions of the Parties
[18] The position of the applicant is that the License of Occupation met all the criteria of a lease, and that the relationship between the applicant and Bingemans was governed by the CTA. He submits that the CTA is the default Act which applies for land when it is not residential. He contends that the license was not validly revoked. It is an implied term of every contract, he asserts, that the contract cannot be arbitrarily revoked. He contends that the Trespass to Property Act does not apply in this circumstance. He asserts that Bingemans did not have the right to summarily revoke the license at will; rather, he submits, Bingemans was obligated to apply to a court for a determination. He submits that he was deprived of his right to reasonable employment of land that he had paid for, and that the police participated in an illegal eviction.
[19] The position of the respondent Bingemans is that the relationship in this instance was one of a license rather than a lease, and that the applicant had no leasehold interest in the land. The relationship was governed by the License of Occupation. The applicant’s license was properly revoked pursuant to the terms of the agreement between the parties, it submits, as paragraphs 19 and 23 allowed for a revocation of the license. It further suggests that the whole episode was staged, and that Mr. Harvey was “flexing” his legal prowess as a paralegal to taunt Bingemans and the police. It contends that the brief arrest of the applicant was lawful and asks that the application be dismissed.
[20] The position of the respondent WRPSB is that the threshold issue of whether the CTA applies to the relationship between the applicant and Bingemans ought first to be determined as it relates to those parties. Only then, it submits, can the Court determine any of the issues with respect to the relief requested as against the WRPSB. It suggests that the proceeding as against the WRPSB was improperly brought as an application. It submits that if the answer to the questions with respect to the relationship between Bingemans and the applicant are determined in favour of Bingemans’ position, then there is no way that the applicant can proceed as against the WRPSB, and the application should be dismissed. If the applicant is successful in his argument as against Bingemans, it submits, then the application should be converted into an action as against the WRPSB, as it suggests that it is not appropriate to assess general damages in an application.
Issues
[21] The issues in this matter are:
Was the applicant Shaun Harvey a Licensee or a Tenant?
Do the RTA and CTA apply?
Was Bingemans required to obtain a Writ of Possession from the Superior Court of Justice before terminating the License?
Was Bingemans entitled to terminate the License of Occupation?
Did the WRPSB act within their authority under the Trespass to Property Act?
Should the application as against the WRPSB be ordered to proceed as an action?
Law
[22] Section 2(1) (b) of the Trespass to Property Act, R.S.O. 1990, c. T.21 provides:
Every person who is not acting under a right or authority conferred by law and who,
(b) does not leave the premises immediately after he or she is directed to do so by the occupier of the premises or a person authorized by the occupier, is guilty of an offence and on conviction is liable to a fine of not more than $10,000.
[23] Under s. 9(1) of the Trespass to Property Act, a police officer may arrest without warrant any person he or she believes on reasonable and probable grounds to be on the premises in contravention of section 2.
[24] A person becomes a trespasser when they are lawfully asked to leave a premise and refuse to do so: Pozniak v. Sault. Ste. Marie Police Services Board, [2000] O.J. No. 4159, 2000 26995 (Ont. Div. Ct.) at para. 17.
[25] Under the Police Services Act, the officers employed by the WRPSB have a duty to preserve the peace, prevent criminal and other offences, and to provide assistance to other persons in their prevention.
Analysis
[26] There is a difference between a license and a lease. A license is a permission to use a property. It does not convey a leasehold interest in the land. With a license, one becomes a licensee; with a lease, one becomes a tenant. There are similarities between the rights of tenants and licensees, but they are not the same. The concepts cannot be used interchangeably.
[27] A licensee is permitted to enter onto lands, with the permission or consent of the owner. A license gives the licensee the right to do something on the owner’s property, which the owner could otherwise prevent.
[28] Generally, a lease exists where the owner agrees to turn over exclusive possession of the property to another for a period of time. The conveyance of exclusive possession is an essential characteristic of a lease. A license, on the other hand, is an agreement that gives the licensee permission to use the land only at the owner’s discretion. A license is a revocable privilege.
[29] In interpreting a contract, one looks first to the intentions of the parties at the time the contract was agreed. The intended use for the campground site in this matter was stated as being for “seasonal recreation and vacation purposes only.” The license documents confirmed that the campground was designed and intended for seasonal or temporary campground and recreational use only. The applicant was required to maintain a permanent residential premises at another location, which he did.
[30] The applicant contends that the rental of a seasonal plot of land to park a recreational vehicle is clearly a case where an owner is permitting the occupation of the premises in question, and is thus a tenant as defined by s.1 of the CTA. Therefore, he submits, the CTA governs the relationship between the applicant and the respondent.
[31] This is a reductio ad absurdum argument. More is required to establish a tenancy than merely permission to occupy land for a given period. The necessary attributes of a lease are not present here. There was no conveyance of exclusive possession.
[32] Throughout the various license documents in this case, including the License of Occupation, Bingemans granted the applicant a license to use the site at the campground until October 31, 2020. There is nowhere in any of the license documents a mention or suggestion that the applicant was a tenant or that the contract between Bingemans and the applicant was a lease. The license documents had been read and understood by Mr. Harvey. He agreed to abide by the terms of the license documents, and he acknowledged that he was a licensee on the campground. This only changed once he had erected the fence and refused to take it down.
[33] The license documents provided that any breach of the Rules of the Park by the Occupant shall be deemed to be a breach of the license and the license may be immediately terminated at the option of the Owner. They provided that anyone breaching the Code will be asked to leave the campground immediately, and that the License of Occupation would be cancelled immediately and there would be no refunds.
[34] For either the CTA or the RTA to apply, there had to be a lease, and a landlord/tenant relationship. I find that this was not present in these circumstances.
[35] The CTA governs commercial, not residential, leases.
[36] Section 5(a) of the RTA states that it does not apply with respect to living accommodations intended to be provided to the travelling or vacationing public or occupied for a seasonal or temporary purpose in a campground.
[37] Section 2 of the CTA states that it does not apply to tenancies and tenancy agreements to which the RTA applies. This exclusion does not provide that residential matters excluded under the CTA are dealt with under the RTA.
[38] Contrary to the submission of the applicant, the CTA is not the default Act when the property is not residential.
[39] The contractual license in this matter was not governed by the CTA. It was governed by the terms of the contract.
[40] The applicant put up a fence. He did not have permission to do so. He agreed to take it down, then reneged on that agreement. Bingemans tried to accommodate his concerns about his children by agreeing that a non-affixed fence could be put up in place of the rebar fence. Mr. Harvey did not live up to that agreement. He unilaterally declared that he would not take down the fence, and he defied Bingemans to compel him. I find that Mr. Harvey’s conduct was indeed to a degree, as he himself acknowledged, “flexing some legal muscle,” his supposed legal prowess, towards both Bingemans and later the WRPS officers who attended. Unfortunately for him, his interpretation of the law was mistaken.
[41] Pursuant to the terms of the contract, as manifested in the License of Occupation, Bingemans was authorized to require the removal of the fence and the deck failing which it could terminate the license. I find that Bingemans was entitled to terminate the License of Occupation as it did.
[42] A Writ of Possession is not required to terminate a license. A license is revocable in appropriate circumstances. If it were otherwise, as the respondents point out, the law would require police officers dealing with rowdy occupants of a campsite at a Provincial Park to attend court first before requiring such persons to leave. This would be absurd and unworkable in practice.
[43] Accordingly, contrary to the submission of the applicant, a Writ of Possession from the Superior Court of Justice was not required to terminate the license or to prevent the applicant from being present at the Bingemans’ campground.
[44] The applicant alludes to a number of historical “ticket cases,” and in particular points to the findings of the court in Davidson v. Toronto Blue Jays Baseball Ltd., (1998) 1998 14938 (ON SC), 170 D.L.R. (4th) 559 (Ont. Ct. (Gen. Div.)). Davidson may readily be distinguished from the instant case. On the facts in that case, Mr. Davidson’s license was not revoked, and he was dealt with inappropriately by police. That is not the case here. Mr. Harvey’s license was properly revoked.
[45] The applicant contends that Bingemans was not entitled to enforce the Notice through self-help. That submission does not accord with the facts of this case. Bingemans did not rely on “self-help” to evict the applicant. Rather, they relied on the Trespass to Property Act and called the police.
[46] Having found this, I am now in a position to move on to consider the issues concerning the arrest of Mr. Harvey by the WRPS police officers on August 23, 2020.
[47] To make an arrest without a warrant pursuant to the Trespass to Property Act, a police officer must have reasonable and probable grounds to believe an individual is on the premises without a right or authority conferred by law. The WRPS had been notified that the applicant’s license had been terminated effective August 21, 2020. They observed him to be on the site on August 23, 2020. He had no colour of right to be there. His refusal to leave the campground when directed provided lawful authority for them to arrest Mr. Harvey pursuant to the Trespass to Property Act. The police officers did not act improperly in making the arrest. Liability depends on the lawfulness of the arrest.
[48] The applicant complains that his reputation was damaged by the brief arrest. If that was the case, it was by a conflict of his own creation. The legal submissions of the applicant were grandiose, but without merit. He took an adamant stand on a contrived and incorrect interpretation of the law. He sought to provoke both Bingemans and the WRPS police officers. His arrogance was his undoing. He was hoist on his own petard. Where the arrest is lawful, there is no liability in tort for false arrest or false imprisonment: R. v. Whitfield (1969), 1969 4 (SCC), [1970] S.C.R. 46 (S.C.C.); and Pozniak, at para. 21.
Conclusion
[49] In summary, I make the following findings. The contractual relationship between the applicant Shaun Harvey and Bingemans was that of a licensor/licensee. The CTA and RTA have no application in the factual circumstances of this case. The license was properly revoked by Bingemans. On August 23, 2020, Mr. Harvey was trespassing at the Bingemans campground. The applicant advised the WRPS officers that he would only leave the Bingemans’ property if he was arrested. Given that, the WRPS officers acted within their authority under the Trespass to Property Act. The applicant has suffered no compensable harm giving rise to an entitlement to damages.
Order
[50] The application is dismissed as against all of the respondents.
Costs
[51] The parties are encouraged to agree upon appropriate costs. If the parties are not able to agree on costs, they may make brief written submissions to me (maximum three pages double-spaced, plus a bill of costs) by email to my judicial assistant at mona.goodwin@ontario.ca and to Kitchener.SCJJA@ontario.ca. The respondents may have 14 days from the release of this decision to provide their submissions, with a copy to the applicant; the applicant a further 14 days to respond; and the respondents a further 7 days for a reply, if any. If no submissions are received within this timeframe, the parties will be deemed to have settled the issue of costs as between themselves. If I have not received any response or reply submissions within the specified timeframes after the respondents’ initial submissions, I will consider that the parties do not wish to make any further submissions, and will decide on the basis of the material that I have received.
M. Gibson, J.
Date: June 30, 2022