Court File and Parties

COURT FILE NO.: CV-23-63 DATE: 2023/07/25 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

MOHAWKS OF THE BAY OF QUINTE FIRST NATION Applicant – and – JACOB BRANT Respondent

Counsel: Kaelan Unrau, for the Applicant Respondent, Self-Represented

HEARD: July 18, 2023

REASONS FOR JUDGMENT Rees J.

I. Overview

[1] The applicant Mohawks of the Bay of Quinte First Nation seeks an order evicting the respondent Jacob Brant from community rental housing located on the First Nation’s reserve.

[2] The First Nation alleges that Mr. Brant has breached his tenancy agreement with the First Nation. It says that Mr. Brant has driven vehicles through neighbouring yards, has left two dismantled camper trailers in his backyard, and has damaged a fence installed by the First Nation, all contrary to this tenancy agreement.

[3] Mr. Brant resists the application and denies that he has breached the tenancy agreement. He says that the First Nation is treating him unfairly.

II. Facts

[4] The First Nation is a band within the meaning of the Indian Act, R.S.C. 1985, c. I-5, and controls the Tyendinaga Mohawk Territory. The First Nation owns and administers community housing located on the reserve, which it rents to members of the First Nation.

[5] Mr. Brant is a member of the First Nation. He rents and occupies an on-reserve community housing unit.

A. The Rental Agreement

[6] On December 21, 2007, Mr. Brant signed a rental agreement with the First Nation. The agreement took effect January 1, 2008.

[7] The rental agreement requires tenants to “comply with and adhere to all By-Laws of the Tyendinaga Mohawk Territory as passed by the Council” (art. 5(c)).

[8] The rental agreement also provides, in art. 15(f), that if a tenant fails “to observe, perform or comply with any terms, conditions or stipulations herein contained … it shall be lawful for the Mohawks of the Bay of Quinte, by giving 30 days written notice, to declare the term ended and this Rental Agreement terminated”.

B. The Rental Unit Policy

[9] On December 2, 2013, the Tyendinaga Mohawk Council passed a Rental Unit Policy. It has since undergone several revisions. During the period relevant to this application, the Policy required that:

a. “All vehicles, including but not limited to automobiles, off-road vehicles, camping trailers, RVs and boats, must be parked on the driveway and not stored on the property’s lawn area” (s. 5.0(a)(xii));

b. “The Tenant, Occupant(s), or their Guest(s) will be considerate of neighbours by conducting oneself in a manner that does not threaten or disturb others” (s. 5.0(a)(xv)); and

c. “The Tenant will not alter, amend or change the premises without written permission of the MBQ Housing Department” (s. 5.0(a)(xvi)).

[10] The Policy also sets out the process for evicting tenants from the First Nation’s community housing:

a. if the tenant has, among other things, caused damage to the rental unit and property, or disturbed the enjoyment of other tenants, the First Nation must issue a warning either orally or in writing (s. 9.0(c))

b. if the tenant does not address the issue(s) raised in the first warning, the First Nation must issue a second warning in writing (s. 9.0(d)); and

c. if the tenant commits a third infraction, the First Nation will evict the tenant from the rental unit (s. 9.0(e)).

C. The Warnings and Eviction Notice

[11] On October 27, 2017, following a complaint that Mr. Brant drove a vehicle across a neighbour’s yard and damaged the lawn, the First Nation provided Mr. Brant with a written warning to stop doing so. The warning informed Mr. Brant that the “[f]ailure to stop this behavior … may result in an eviction from your unit as subject to the Housing Policy and your signed Lease Agreement.”

[12] Mr. Brant responded in writing to the first warning with threats. He also stated that “we drove on the trails. So fuck off.”

[13] The First Nation provided Mr. Brant with a second written warning around May 24, 2018. First Nation staff had observed camping trailers parked in the backyard of his unit. The second warning gave Mr. Brant two weeks to move the trailers to the driveway, failing which the First Nation would take further action.

[14] Mr. Brant did not move the trailers. During an inspection in October 2019, he told First Nation staff that people were living in the trailers. Meanwhile, Mr. Brant continued to drive vehicles through neighbouring yards.

[15] On May 5, 2020, the First Nation issued a third written warning, advising Mr. Brant that he had failed to address the concerns raised in the first two warnings. The third warning gave Mr. Brant “a final opportunity to abide by the terms and conditions of [the] Rental Agreement and the Rental Unit Policy and to avoid eviction.” The letter required him to stop driving vehicles through neighbouring yards; to remove the trailers from his backyard by May 31, 2020; and to sign a “Last Chance Agreement” by May 31, 2020.

[16] Mr. Brant did not respond.

[17] On September 4, 2020, the First Nation provided Mr. Brant with an eviction notice, directing Mr. Brant to vacate his unit by 1 p.m. on October 5, 2020. The eviction notice stated that he was being evicted because he had not signed the last chance agreement and had not addressed the issues he was warned about.

[18] Mr. Brant did not vacate the unit. Since the eviction notice was served on Mr. Brant, he has repeatedly removed or damaged fencing installed by the First Nation around neighbouring backyards. He has also continued to drive vehicles over neighbours’ yards and leave camper trailers on the yard of his unit.

[19] On July 19, 2021, the First Nation sent another notice to Mr. Brant and gave him a month to vacate the unit. Mr. Brant ignored it. The First Nation is no longer comfortable directing staff to go the unit due to Mr. Brant’s behaviour.

[20] On January 9, 2023, another follow up notice to vacate was served on Mr. Brant personally. He remains in the unit.

[21] There is a shortage of community housing on the reserve. As of August 2022, 131 people were on a waiting list for community housing.

III. Analysis

[22] This is a private law dispute arising from a contract – the rental agreement – between the First Nation and Mr. Brant, which pertains to the lease of reserve land. This court has jurisdiction over the dispute: Tyendinaga Mohawk Council v. Brant, 2014 ONCA 565, 121 O.R. (3d) 561(C.A.), at paras. 40-41.

A. Has Mr. Brant breached the rental agreement?

[23] Mr. Brant admits that he drove his vehicle over his neighbour’s lawn. He simply says others do this and that it is not contrary to his rental agreement to do so. He also argues that it is not against the law on the reserve.

[24] Similarly, Mr. Brant admits that he has trailers on his lawn. But he says this is not contrary to his rental agreement and that the trailers are not dismantled. Mr. Brant boarded up the bottom of one trailer to keep the trailer warm in the winter, but says the wheels are still on the trailer underneath the boards. His son and grandson have nowhere else to live, so they live in one trailer. Mr. Brant also lived in one of the trailers while he was separated from his former spouse, who was living in the rental unit.

[25] Mr. Brant admits that he rolled back the fence, but he says he did it for the safety of children.

[26] Mr. Brant says he has been unfairly targeted by the First Nation. He argues that he is not bound by the Council’s Rental Unit Policy. Mr. Brant also argues that he is not bound by the rental agreement because a representative of the First Nation did not countersign it.

[27] Contrary to Mr. Brant’s argument, the 2008 rental agreement is binding on Mr. Brant and the First Nation. Even though no one signed on behalf of the First Nation, the rental agreement was entered into by the First Nation through its conduct. The First Nation has provided rental housing to Mr. Brant under the rental agreement since January 2008.

[28] Mr. Brant has breached the rental agreement in three ways.

[29] First, Mr. Brant breached the rental agreement by driving over his neighbours’ yards. I am satisfied that Mr. Brant has done so several times and that by doing so, he has damaged their lawns. He is interfering with the quiet enjoyment of his neighbours’ property. It conflicts with the implied term at common law that Mr. Brant use the premises in a tenant-like manner, which requires, among other things, that he not damage the premises and see that his family and guests do not damage them: see Midland Commercial Sales & Service Ltd. v. Laham and Cove (1985), 38 Man. R. (2d) 81 (Q.B.), at 86, quoting Warren v. Keen, [1953] 2 All E.R. 1118 (Eng. C.A.), at 1120–21 (per Denning L.J.). He must equally respect the surrounding community housing occupied by his neighbours.

[30] Second, Mr. Brant also breached the rental agreement by leaving two dismantled camping trailers in his yard. Article 5(c) of his rental agreement incorporates by reference the Council’s Rental/Mortgaged Property Maintenance and Occupancy Standards By-Law, No. 16-87. Section 3(1)(c) of the by-law provides that:

Any vehicle including a trailer, which is in a wrecked, discarded, dismantled or abandoned condition shall not be parked stored [sic] or left in a yard, unless it is necessary for the operating of a business enterprise lawfully situated on the property.

[31] Mr. Brant has breached s. 3(1)(c) of the by-law – and thus art. 5(c) of the rental agreement – by turning the trailers into permanent or quasi-permanent structures. One has its wheels boarded up. Both provide permanent housing to him and his family. They are effectively dismantled within the meaning of the prohibition in s. 3(1)(c). They are not being used as mobile trailers or parked in the yard temporarily between trips on the road. Although I have sympathy for Mr. Brant and his family’s housing situation, leaving the trailers in his yard for years at a time breaches the rental agreement.

[32] Third, Mr. Brant breached the rental agreement by removing and damaging the fence around neighbouring backyards. Article 5(c) of the rental agreement incorporates by-law s.4(a): “Accessory buildings and fences shall be kept in good repair and free from health, fire and accident hazards.” Mr. Brant’s motives for removing or damaging the fence erected by the First Nation are immaterial. Removing or altering the fence is contrary to his contractual obligations under the rental agreement.

[33] Finally, I am not persuaded that the First Nation has been unfair to Mr. Brant. To the contrary, it has accorded him procedural fairness and has gone beyond what was required by the rental agreement and the Policy. The First Nation has not been motivated by malice or an improper purpose towards Mr. Brant. The First Nation gave Mr. Brant several opportunities over several years to remedy the breaches before requiring that he vacate the rental unit. He failed to do so, and his breaches are ongoing. Mr. Brant responded with threats.

B. Can the First Nation rely on the Tyendinaga Police Service to enforce the eviction?

[34] The First Nation asks that I include a police enforcement clause with the order to vacate and a writ of possession, relying on Meadowridge School Society v. Allen, 2018 BCSC 1707, at para. 38. The First Nation contends that because provincial property law does not apply on the reserve, an order for possession is not enforceable by the Sheriff. Here, the First Nation says, the Tyendinaga Police Service is the most suitable body to enforce the eviction.

[35] This point was not fully argued, and I leave it for another day. I decline to include a police enforcement clause in the Court’s order. Mr. Brant is required to abide by the Court’s order. If he does not, the First Nation can return to the Court to enforce the order.

IV. Disposition

[36] Thus, I declare that Mr. Brant has breached his rental agreement. I order Mr. Brant and the other occupants to vacate 9 Huron Brant Drive, Tyendinaga Mohawk Territory within 30 days of the release of this decision. The First Nation may enter the unit and take possession once the 30 days have elapsed.

[37] If the First Nation wishes to seek costs against Mr. Brant, it may file a bill of costs, and the parties can make costs submissions in writing of no more than 750 words.

Justice Owen Rees Released: July 25, 2023