



COURT OF APPEAL FOR ONTARIO

CITATION:
Haliburton
    (County) v. Gillespie, 2013 ONCA 40

DATE: 20130125

DOCKET: C54563

Goudge, Sharpe and Gillese JJ.A.

BETWEEN

The Corporation of the County of
    Haliburton

Respondent

and

David L. Gillespie

Appellant

Tyler Hodgson, for the appellant

Neil Abbott and Sirpal Randhawa, for the respondent

Heard: November 16, 2012

On appeal from the judgment of Justice Lorne E. Chester
    of the Ontario Court of Justice, dated September 8, 2011, allowing an appeal
    from the judgment of Justice of the Peace D. Jackson, dated January 6, 2011.

Sharpe
    J.A.:

[1]

While driving an all-terrain vehicle (ATV), the appellant, David L.
    Gillespie, was stopped at a
RIDE
program within the boundaries of the
    common area of Harcourt Park.

[2]

He was charged with contravening s. 19(1) of the
Off-Road Vehicles
    Act
, R.S.O. 1990, c. O.4, which makes it an offence to drive or ride an
    off-road vehicle without wearing a helmet.

[3]

The issue on this appeal is whether the appellant, as a lessee and
    member of Harcourt Park, is an occupier of the land comprising the common
    area of Harcourt Park and therefore exempt from the ordinary obligation imposed
    on the operator of an ATV to wear a helmet pursuant to s. 19(2) of the
Off-Road
    Vehicles Act
.

[4]

Harcourt Park, a 7000-acre parcel of land in the County of Haliburton,
    is owned by Harcourt Park Inc. (the Corporation), a non-share capital
    corporation. Harcourt Park is private property to which the public is not
    permitted entry except on invitation from a leaseholder. The Corporation leases
    582 half-acre, individual, lake-front parcels to leaseholders, including the
    appellant, who are also members of the Corporation. Some parcels are combined
    and there are approximately 540 lessees. As a lessee, the appellant enjoys
    exclusive possession of his own parcel and shares with the other leaseholders
    the right to use the common area of Harcourt Park.

[5]

The appellant was acquitted by the Justice of Peace who found that the
    appellant was an occupier of the common area of Harcourt Park for the purposes
    of the
Off-Road Vehicles Act
. On appeal to the Ontario Court of
    Justice, the appeal judge disagreed and found that the Corporation, not the
    individual lessees, has responsibility and control over the common area and that
    the appellant was not an occupier and therefore not exempt from the
    provisions of the
Off-Road Vehicles Act.
The appeal judge entered a
    conviction and imposed a suspended sentence. The appellant appeals to this
    court with leave. For the following reasons, I would dismiss the appeal and
    uphold the conviction.

FACTS

[6]

Harcourt Park contains 45 km of private roads intended for the use of
    the lessees and their invitees. Harcourt Park is private property and routine
    government and municipal services such as road maintenance, snow clearance,
    mail delivery, and garbage collection are not available. Signs at the only two
    entrances to Harcourt Park from public roads are marked: Harcourt Park
    Incorporated. Private Property. No Trespassing. Private Drive. Trespassers will
    be prosecuted. No Exit.

[7]

The 582 individual leased parcels comprise about 4% of the total area of
    Harcourt Park. Lessees, who are also members of the non-share capital
    Corporation, have exclusive possession of their leased parcels and access to
    the common area for recreational activities including fishing, hiking, skiing
    and snowmobiling. Lessees pay an annual fee for the upkeep of the common area
    and routinely volunteer to perform maintenance work.

[8]

The Corporations by-laws, approved by the membership at an annual
    general meeting, regulate the activities permitted in the common area. The by-laws
    provide that to enter Harcourt Park, a non-member must be invited by a member.
    Members are permitted to invite two guests at any one time. Guests are required
    to carry guest cards and the by-laws stipulate that members are responsible to
    ensure that their guests comply with the by-laws. It is the practice for
    members to escort uninvited non-guests to the property line. Two members are
    employed as part-time security officers to enforce the by-laws and escort
    trespassers from the property.

[9]

In the belief that some provincial legislation, including the
Off-Road
    Vehicles Act
, does not apply within the property, the Corporation enacted
    by-laws mimicking that and other legislation. By-law 48 provides that off-road
    vehicles must be operated as required by the
Off-Road Vehicles Act
and
    specifically requires the driver of such vehicles to wear a helmet.

LEGISLATION

[10]

The
    offence and exemption at issue on this appeal are found in s. 19 of the
Off-Road
    Vehicles Act
:

19
(1)
    No person shall drive an off-road vehicle or ride on an off-road vehicle or on
    a conveyance towed by an off-road vehicle unless he or she is wearing a helmet
    that complies with the regulations, securely fastened under his or her chin
    with a chin strap.

(2)This section does not apply to a person driving or
    riding on an off-road vehicle or on a conveyance towed by an off-road vehicle
    where the owner of the off-road vehicle is the occupier of the land.

[11]

Occupier
    is defined in s. 1:

occupier includes,

(a) a person who is in physical possession of the
    land, or

(b) a person who has responsibility for and
    control over the condition of land or the activities there carried on, or
    control over persons allowed to enter the land,

even if there is more than one occupier of the same
    land; (occupant)

[12]

The
    French version of the definition is:

«occupant» Sentend de :

a) celui qui a la possession
    matérielle du bien-fonds;

b) celui qui a la responsabilité
    et la surveillance de létat du bien-fonds, des activités qui y sont exercées
    ou le contrôle des personnes admises à pénétrer sur le bien-fonds,

peu importe quil y ait plus dun
    occupant sur le même bien-fonds.
(«occupier»)

[13]

The
    same or virtually the same definition of occupier is found in the
Occupiers
    Liability Act
, R.S.O. 1990, c. O.2, s. 1 and the
Trespass to Property
    Act
, R.S.O. 1990, c. T.21, s. 1:

occupier includes,

(a) a person who is in physical possession of
    premises, or

(b) a person who has responsibility for and
    control over the condition of premises or the activities there carried on, or
    control over persons allowed to enter the premises,

despite the fact that there is more than one
    occupier of the same premises; (occupant) [
The Trespass to Property Act
provides even if there is more than one occupier of the same premises.]

JUDICIAL HISTORY

Trial before the Justice of
    the Peace

[14]

The
    Justice of the Peace found that Harcourt Park was private property not
    accessible to the general public. As the Corporation is the occupier of the
    common area, it followed that as a member of the Corporation, the appellant was
    an occupier of the common area and therefore exempt from the helmet
    requirement.

Appeal to the Ontario Court
    of Justice

[15]

The
    appeal judge rejected the submission that as the Corporation owns and controls
    the use of the common areas and as the members control the Corporation, it
    follows that a member meets the definition of occupier. The appeal judge
    applied the well-established principle that a corporation is distinct from its
    members or shareholders. He held that as one of the lessee-members, the
    appellant did not have physical possession or control for the purposes of the
    statutory definition. It is the Corporation, and not its individual members, that
    has responsibility for and control over the condition of the land constituted
    by the common areas.

ANALYIS

Principles of Statutory Interpretation

[16]

This case poses a question of statutory interpretation. In
Bell
    ExpressVu Limited Partnership v. Rex
, [2002] 2 S.C.R.
    559, 2002 SCC 42, at paras. 26 and 27, the Supreme Court of Canada set out the
    preferred approach, derived from 
Elmer Driedgers definitive
    formulation, found at p. 87 of his
Construction of Statutes
(2nd ed.
    1983): Today there is only one principle or approach, namely, the words of an
    Act are to be read in their entire context and in their grammatical and
    ordinary sense harmoniously with the scheme of the Act, the object of the Act,
    and the intention of Parliament. The preferred approach is buttressed by
    the
Legislation Act, 2006
, S.O. 2006, c.21, Schedule F, s. 64(1),
    which provides that every enactment
shall be interpreted as being remedial and shall be given such
    fair, large and liberal interpretation as best ensures the attainment of its
    objects.

[17]

The
    preferred approach also recognizes the important role that context must
    inevitably play when a court construes the written words of a statute and
    stipulates that where the provision under consideration is found in an Act
    that is itself a component of a larger statutory scheme, the surroundings that
    colour the words and the scheme of the Act are more expansive:
Bell
    ExpressVu
,

at para. 27.

This gives rise to what was
    described in
R. v. Ulybel Enterprises Ltd.
, [2001] 2 S.C.R. 867, 2001
    SCC 56, at para. 52, as the principle of interpretation that presumes a
    harmony, coherence, and consistency between statutes dealing with the same
    subject matter.

[18]

I
    note here that there appear to be no cases interpreting the definition of
    occupier in the
Off-Road Vehicles Act
, but several cases dealing
    with the definition under the
Occupiers Liability Act
.

Interpreting occupier in the
Off-Road
    Vehicles Act


[19]

I
    begin with an assessment of the
Off-Road Vehicles Act
as a whole. The
    Act contains various provisions for licensing and identifying the owners of
    off-road vehicles and making owners responsible for damage caused by their
    vehicles. The Act requires drivers of off-road vehicles to have a permit (s. 3)
    and provides for number plates on such vehicles (s. 5(3)). Drivers of off-road
    vehicles must be insured (s. 15) and the owner of an off-road vehicle is
    jointly and severally liable for any damages caused by a non-owner driver (s.
    12). Similarly, the owner may be charged and convicted of any offense for which
    the driver is liable (s. 14). Other provisions relate to records (s. 5(6)),
    regulations regarding permits and permit numbers (s. 5(7)), change of ownership
    (s. 8) and address (s. 6(2)), and uses and display of permits (ss. 7, 8, 10,
    11).

[20]

Certain
    provisions, including the helmet requirement at issue on this appeal, relate to
    public safety. These include the mandatory insurance requirement, which
    protects injured persons as well as owners of property damaged. Other public
    safety provisions are the offence of careless driving (s. 16) and the minimum
    age of 12 for drivers (s. 4).

[21]

Where
    an off-road vehicle is used on land occupied by the owner of the vehicle, the
    following requirements imposed on owners and drivers of off-road vehicles do
    not apply: the need for a permit (s. 3(3)); the minimum age of 12 for drivers
    (s. 4(2)); the mandatory insurance requirement (s. 15(9)); and the mandatory
    helmet requirement (s. 19(2)).

[22]

The
Off-Road Vehicles Act
would appear to have a two purposes or objects:
    first, the identification and control of such vehicles; and second, public
    safety. We were provided with the Ministers statement when introducing the
Off-Road
    Vehicles Act
in the legislature in 1983: Ontario, Legislative Assembly,
Official
    Report of Debates (Hansard),
32nd Parl, 3rd Sess, Vol. 2, (7 June 1983), at
    p. 1455 (James Snow). The Minister summarized the intention of the bill as
    being to encourage the safe driving of these vehicles and provide a method of
    control and identification. The Minister indicated that municipalities had
    urged the adoption of provincial licensing and regulation of such vehicles to
    allow for the identification of drivers and control of damage to public
    property.

[23]

I
    turn to the specific provision that concerns us on this appeal, namely, the
    definition of occupier. Under the statutory definition, there are four ways a
    person can be an occupier:

1.

be in physical
    possession of the land;

2.

be responsible
    for and have control over the condition of the land;

3.

be responsible
    for and have control over the activities there carried on; or

4.

have control
    over persons allowed to enter the land.

See
Moody v. Toronto (City)
(1996), 31 O.R.
    (3d) 53 (Gen. Div.) and
Lemieux v. Porcupine

Snowmobile Club of
    Timmins Inc.
(1999), 120 O.A.C. 292 (C.A.); both cases deal with the
Occupiers
    Liability Act
and adopt this four-part classification.

[24]

The
    appellant concedes that he does not qualify as an occupier as a person who
    is in physical possession of the land.

[25]

His
    primary submission is that because only lessees and their guests are allowed on
    the common area, as a lessee, he has control over persons allowed to enter the
    land and thus meets the definition of occupier.

[26]

I
    am unable to accept that submission. The right, shared with other lessees, to
    invite guests to be on the common area does not, on the facts of this case, amount
    to having control over persons allowed to enter the land. When used in
    conjunction with occupier, the word control suggests, at a minimum, the
    capacity to determine who may and who may not be on the property. The appellant
    does not have that capacity in any meaningful sense. There are approximately 540
    lessees, each of whom is entitled to have his or her own family members on the
    common area and to invite two guests at a time to be on the common area. Each
    guest is permitted to include his or her spouse and children. This means that there
    could be thousands of people on the common area. Of that number, the individual
    lessee would control only himself and his two guests. He would have no say whatsoever
    as to the other lessees, their family members, their invitees and the family
    members of their invitees. In my view, that does not amount to having control
    over persons allowed to enter the land.

[27]

The
    appellant also submits that he fits the definition of occupier as he has
    responsibility for and control over the condition of the land or the activities
    there carried on.

[28]

I
    disagree with that submission. It is clear from the record that the legal
    entity that owns and has responsibility for and control over the condition of
    the common area and the activities there carried on is the Corporation. The
    appellant, as a lessee and member of the Corporation, has the right to
    participate in the affairs of the Corporation and to vote on by-laws dealing
    with the condition and maintenance of the common area and the activities
    permitted thereon.  However, as the appeal judge stated, referring to
Salomon
    v. Salomon
, [1897] A.C. 22, a corporation is a separate legal entity
    distinct from the shareholders or members of the corporation and:

It is the corporation through its managers or special guards who
    has control over the conditions of the land and control over the persons
    allowed to enter the lands. It is Harcourt Park Inc., not its members or its
    individual members, who have responsibility for and control over the condition
    of the land.

[29]

I
    will return to this aspect of the definition of occupier when I discuss the
Occupiers
    Liability Act
.

[30]

To
    hold that the appellant is an occupier would, in my opinion, be inconsistent
    with both remedial purposes of the
Off-Road Vehicles Act
. As the
    helmet requirement is one of the provisions that have public safety as their purpose,
    it is appropriate to ask whether that public safety purpose would be fostered
    or frustrated by interpreting occupier as broadly as advocated by the
    appellant. The answer to that question is clear. When driving his ATV on the
    common area, the appellant is on a large tract of land shared with a large
    number of fellow lessees and their guests. His own safety and that of his
    fellow lessees, their families and their guests is at risk. I see no reason to
    grant him an exemption that would require a strained interpretation of the
    definition of occupier. There is a clear public safety interest in requiring
    him to wear a helmet, to be insured and to ensure that drivers of his vehicle
    are over 12 years old.

[31]

I
    reach a similar conclusion when the other purpose of the statute is considered,
    namely to provide for a method of control and identification. The interpretation
    urged by the appellant would exempt him from the obligation to have a permit
    for his ATV when on the common area. The common area is expansive, and a large
    and diffuse group of lessees and invitees are permitted on it. There is every
    reason to insist that drivers of such vehicles should comply with the permit
    requirements to allow for their identification and control.

[32]

I
    add here that it is no answer to say that the Corporation has adopted by-laws
    that mimic the provisions of the
Off-Road Vehicles Act
. The
    Corporation could just as easily repeal those by-laws. Regardless, its members
    do not have a choice whether to abide by the laws of Ontario.

Cases
Interpreting occupier in the
Occupiers
    Liability Act

[33]

My
    conclusion on the interpretation of occupier in the
Off-Road Vehicles Act
is significantly fortified when I consider the need to interpret that
    definition in a manner consistent and harmonious with the use of the virtually
    identical definition in the
Occupiers Liability Act
. Section 3 of that
    statute imposes on occupiers a legal duty to take such care as in all the
    circumstances of the case is reasonable to see that persons entering on the
    premises, and the property brought on the premises by those persons are
    reasonably safe while on the premises. Failure to satisfy that duty will
    result in civil liability to any person who suffers injury as a result.

[34]

Interpreting
    occupier for the purposes of the
Occupiers Liability Act
requires
    the court to consider and weigh competing notions with respect to liability.
    The judge must determine when it is reasonable to impose a duty to those who
    suffer harm while on the property. Given the obligations attached, it is not
    surprising that the courts have consistently held that more than simply the
    right to use the land and the right to invite guests onto the land will be
    required to impose the duty of care of an occupier.

[35]

It
    has been held that having the right to use land does not make a person an
    occupier: see
Davies v. Clarington (Municipality)
(2006), 266 D.L.R.
    (4th) 375 (Ont. S.C.), holding that an adjacent landowner who had a
    right-of-way over the area in question was not an occupier. Several cases regarding
    slip and fall injuries deal with the liability of tenants who enjoy the right
    to use common areas in shopping malls and parking lots. Such tenants often have
    the right to invite patrons to use or park in the common areas and may exercise
    some control over the common areas and the activities carried on there. These
    cases typically turn on the terms of the lease agreements between the mall
    owners and the mall tenants that determine which party has responsibility for
    upkeep, what rights the tenants have to use the common areas, and how many
    other tenants have the right to use or control the use of that space.

[36]

Generally,
    the tenants right to use parts of the common areas (including a parking lot)
    is seen to be separate and distinct from the tenants rights regarding its own
    leased premises. The rights enjoyed in relation to common areas ordinarily do not
    make the tenant an occupier of those areas:
Crisostimo v. Rosenthal
(1988), 65 O.R. (2d) 43 (H. Ct. J.);
Werden v. Windview Investments Inc.
,
    [1995] O.J. No. 4692 (Ont. Ct. Gen. Div.);
Cress v. Beauregard Enterprises
    Ltd.
, [2000] O.J. No. 205 (S.C.). Even where a tenant had assumed enough
    control voluntarily to pay for and organize snow removal, the court did not
    find sufficient evidence of control to make the tenant an occupier:
Crisostimo
.
    The right to have some (although not exclusive) use of the parking lot to allow
    customers of the tenant to park their cars is not sufficient to constitute
    occupation, particularly where there are other tenants who also have the same
    right regarding their customers.

[37]

While
    clearly not on all fours with the facts of this case, these authorities suggest
    that the right to use the land and to invite others to do so will not be
    sufficient to make the right-holder an occupier. While the right to allow
    certain individuals (like guests) onto the land will point somewhat toward
    occupation, if others also have that right then occupation is less likely. Stronger
    control over precisely who is permitted or excluded or over the state of the
    land or the activities carried on there will be required to establish liability
    as an occupier.

CONCLUSION

[38]

Accordingly,
    I conclude that the appellant does not meet the definition of occupier in the
Off-Road Vehicles Act
, when the definition is read in the entire
    context of the Act and the words of the definition are given their grammatical
    and ordinary sense, interpreted harmoniously with the scheme and object of that
    Act, the intention of the legislature, and the other two statutes that employ
    the same language.

[39]

For
    these reasons, I would dismiss the appeal and affirm the decision of the appeal
    judge convicting the appellant.

Robert J. Sharpe
    J.A.

I agree S.T. Goudge
    J.A.

I agree E.E. Gillese
    J.A.

Released:
January 25, 2013


