



COURT OF APPEAL FOR ONTARIO

CITATION:
White v. Upper Thames River Conservation Authority, 2022 ONCA
    146

DATE: 20220216

DOCKET: C69475

Lauwers, Huscroft and Coroza
    JJ.A.

BETWEEN

John White, Sarah White, Garth
    Williams, Paul Stubbens, Elaine Stubbens, Linda Adams, Steve Ward, Kevin Prust,
    Theresa Prust, James Osmar, Carol Tracy, Barry Nash, Judy Nash, Brent
    Poley, Thane Ulrich, Brian Hanlon, Nancy Hanlon, John Conlon, Joan Conlon, Doug
    Mellor, Norma Mellor, Susan Dawtrey, Claude Guitard, Jamie Mackay, Cindi
    Davis, Rick Brydon, Roy Bissonnette, Dennis Froese, Dave Farnham, Mike Landry,
    Pat Warren, George Clemens, Marilyn Greer, Patrick Kelly, Barb Kelly, Lynn Daly,
    Frank Vandiepenbeek, Frank Sinasac, Gerald Trainor, David Bobier and
    Leslie Putnam

Applicants

(Appellants)

and

Upper Thames River Conservation
    Authority

Respondent

Vedran Simkic and Matthew Helfand, for
    the appellants

Ian Wright, for the respondent

Eli Fellman and Katia Snukal, for the intervener
    Landlord and Tenant Board

Karen Andrews, for the intervener
    Advocacy Centre for Tenants Ontario

Heard: January 28, 2022 by video conference

On appeal from the order of the
    Divisional Court (Justices Harriet E. Sachs, Brian W. Abrams and Michelle OBonsawin),
    dated December 16, 2020, with reasons reported at 2020 ONSC 7822, 154 O.R. (3d)
    133, allowing an appeal from the order of the Landlord and Tenant Board, dated
    June 5, 2018.

Huscroft
    J.A.:

OVERVIEW

[1]

The appellant tenants own homes that sit on land
    leased from the respondent. The homes are the primary residences of many,
    though not all of them.

[2]

The appellants have long-term leases with the
    respondent, first entered in 1983. The leases limit occupancy to weekends
    during the three-month winter period. In other words, for three months out of
    the year, the appellants are not permitted to reside in their homes Monday
    through Friday. The leases were amended in 2004 to permit tenants to choose the
    winter dates when their occupancy limitation runs, but the substance of the
    limitation remains: the appellants are not permitted to occupy their homes
    year-round. Occupancy outside the permitted period is expressly stated to be a
    violation of the terms of this lease and will result in delivery of Notice of
    Lease Termination.

[3]

Despite the clear terms of the lease, the respondent
    has never strictly enforced the occupancy limitation and as a result, many
    tenants live in their homes year-round.
The parties were in the midst of
    renegotiating their leases and the enforceability of the occupancy limitation
    became the subject of a dispute. The appellants applied to the Landlord and
    Tenant Board (the Board) for an order that the
Residential
    Tenancies Act
, 2006
, S.O. 2006, c. 17 applies to their
    tenancies, and an order requiring the respondent to allow them unfettered
    access to and occupation of their homes, year-round.

[4]

The Board held that the Act applies to the parties lease and it
    followed that the tenants ought to have unrestricted access to the rental
    units. The Board added that restricting tenants access would amount to
    substantial interference with their reasonable enjoyment of their rental units,
    in violation of s. 22 of the
Act
. The Divisional Court
    allowed the respondents appeal, holding that s. 22 does not render illegal
    provisions landlords and tenants have agreed upon.

[5]

The application of the Act to the parties lease is no longer contested.
    The sole issue on appeal is the legality of the occupancy limitation in the
    lease.

[6]

In my view, the occupancy limitation is inconsistent with the Act and as
    a result is void. I would allow the appeal for the reasons that follow.

BACKGROUND

The standard of review

[7]

This is an appeal from the decision of the Board
    on a question of law pursuant to s. 210(1) of the Act. As such, the presumption
    of reasonableness review is rebutted and the standard of review is correctness:
Canada (Minister of Citizenship and Immigration) v. Vavilov
, 2019 SCC
    65, 441 D.L.R. (4th) 1, at para. 37. It follows that neither the decision
    of the Board nor the decision of the Divisional Court is entitled to deference.
    Whereas reasonableness review focuses on the decision made and the reasons
    proffered for that decision, under correctness review this court must make the
    decision for itself.

The
Residential Tenancies Act

[8]

The purpose of the Act, as set out in s. 1, is to
"provide protection for residential tenants from unlawful rent
    increases and unlawful evictions, to establish a framework for the regulation
    of residential rents, to balance the rights and responsibilities of residential
    landlords and tenants and to provide for the adjudication of disputes and for
    other processes to informally resolve disputes."

[9]

The Act governs more than the rental of
    apartments in apartment buildings. It also governs situations in which tenants
    own the homes in which they live but rent the land on which those homes sit 
    the situation in this case. The Act defines a land lease home as a dwelling
    that is
a permanent structure where
    the owner of the dwelling leases the land used or intended for use as the site
    for the dwelling. The general terms of the Act apply to land lease homes along
    with a number of specific provisions that cover land lease homes and
    communities, none of which are germane to this appeal.

[10]

The Act is remedial legislation designed to redress the imbalance of
    power between landlords and tenants. It removes leases from the ordinary
    contract law principles that would otherwise govern and establishes extensive
    statutory rights for tenants. The Act enjoys primacy over all other
    legislation, save the
Ontario Human Rights Code
, and the parties
    are prohibited from waiving or limiting the protection the Act provides.
The
    key legislative provisions in this regard are ss. 3 and 4:

3
(1)
This Act, except Part V.1, applies with respect
    to rental units in residential complexes, despite any other Act and despite any
    agreement or waiver to the contrary.

(4) If a
    provision of this Act conflicts with a provision of another Act, other than the
Human Rights Code
, the provision of this Act applies.

4
(1) Subject to
subsection
    12.1(11) and section 194,
a provision in a tenancy agreement that is
    inconsistent with this Act or the regulations is void.

The impugned lease provisions

[11]

The
    occupancy limitation is set out in para. 3 of the lease, which provides:

The lease and license permits the Tenant,
    the Tenant's family and guests to occupy the dwelling house and other
    improvements constructed on the lot only at the following times:

(a)

From the first day of March to the 30th day of
    November in each and every year during the term hereof;

(b)

During the months of January, February and
    December, occupancy shall be weekends only commencing on Friday at 1:00 p.m.
    and concluding on Sunday at 9:00 p.m. Where Friday or Monday is a public holiday,
    such shall be included in the weekend with the times so enlarged.

Occupancy of the dwelling house other than
    at the times as herein provided, shall be a violation of the terms of this
    lease and licence and the lease and license shall at the option of the
    Authority become forfeited and such option may be exercised by delivery of
    notice of termination hereunder.

[12]

Appendix B, added in 2004, permits limited choice of the winter dates
    in which the occupancy limitation runs.
During that period, tenants
    may occupy their units only from Sunday night at 9:00 p.m. to

Monday
    morning at 9:00 a.m. Violation of the occupancy limit is a serious matter. The appendix
    states: Occupancy of the dwelling other than at the times provided, is a
    violation of the terms of this lease and will result in delivery of Notice of
    Lease Termination.

DISCUSSION

[13]

The
    parties have a longstanding rental relationship that has always included occupancy
    limitations. It is unclear why the limitations were established. The respondent
    can suggest no purpose for them, nor does anything in the record indicate the
    practice at other conservation authorities in the province. The respondent is
    attempting to establish the legality of occupancy limitations it has chosen not
    to enforce for decades.

[14]

Regardless
    of the provenance or utility of the occupancy limitations, the operation of the
    Act is clear: if the limitations are inconsistent with the Act they are
    rendered void by operation of s. 4.

[15]

Plainly,
    occupancy limitations are not specifically permitted by the Act, but nor are
    they specifically prohibited. The Divisional Court considered that the absence
    of a specific prohibition was determinative, given the parties agreement to
    the limitations. In an apparent application of the
expressio
    unius est exclusio alterius
maxim, the court reasoned that because
    the Act includes some specific prohibitions  for example, the Act prohibits
    no pet provisions  the absence of a specific prohibition of occupancy limitations
    means that they must be permitted. The court reasoned that [i]f there was a
    limitation regarding limiting access or occupation of a residential unit, the
    court would expect there to be a specific section of the
Act
dealing with this issue. The court added: It can hardly be said that when a
    party voluntarily agrees to a provision of the residential agreement that is
    not specifically provided for by the
Act
, this
    leads to a determination that the provision is inconsistent with the
Act
.

[16]

This
    reasoning is untenable. It does not necessarily follow from the specific prohibition
    of some things in an act that other things not specifically prohibited must be
    permitted. Whether this sort of negative implication can be drawn depends on
    context and common sense  as Scalia and Garner note, whether the thing
    specified can reasonably be thought to be an expression of
all
that shares in the grant or prohibition involved: see
Reading Law: The Interpretation of Legal Texts
(
St. Paul, MN: Thompson/West,
2012), at pp. 107-111. In
    this case, there is no reason to suppose that the Legislatures decision to
    prohibit no pet provisions has anything to do with tenants right to occupy
    the units they rent.

[17]

The
    Divisional Courts reasoning begs the question at issue. Voluntary agreement to
    a provision is irrelevant if that provision is not otherwise permitted. In the
    absence of specific authorization or prohibition, the legality of occupancy
    limitations must be determined by consideration of the provisions of the Act as
    a whole.

[18]

This is simply an application of the modern
    approach to statutory interpretation. The purpose of statutory interpretation
    is uncontroversial: it is to determine the intention of the legislature. The
    Supreme Court summarized the modern approach recently in
Vavilov
, at
    para. 117:

A court interpreting a statutory provision
    does so by applying the modern principle of statutory interpretation, that
    is, that the words of a statute must 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:
Rizzo & Rizzo
    Shoes Ltd. (Re)
, [1998] 1 S.C.R. 27, at para. 21, and
Bell ExpressVu
    Limited Partnership v. Rex
, 2002 SCC 42, [2002] 2 S.C.R. 559, at para. 26,
    both quoting E. Driedger,
Construction of
    Statutes
(2nd ed. 1983), at p. 87. Parliament and the provincial
    legislatures have also provided guidance by way of statutory rules that
    explicitly govern the interpretation of statutes and regulations: see, e.g.,
Interpretation Act
, R.S.C. 1985, c. I-21.

[19]

The
    modern approach to statutory interpretation is now referred to as text,
    context, and purpose: see the helpful discussion by Miller J.A. (dissenting)
    in
R. v. Walsh
, 2021 ONCA 43, 154
    O.R. (3d) 263, at paras. 133-150. In my view, the text, context, and purpose of
    the Act confirm that it contemplates only non-temporary, non-conditional,
    unlimited occupancy arrangements. In short, occupancy limitations in residential
    leases are not permitted.

The security of tenure

[20]

The
    intervener Advocacy Centre for Tenants Ontario and the Board made helpful
    submissions highlighting the security of tenure provisions of the Act 
    provisions that the Divisional Court failed to consider. These provisions are
    premised on the notion that the Act establishes ongoing tenancies that may be
    renewed following completion of the initial fixed term. The circumstances in
    which a landlord may take possession of a rental unit from a tenant are strictly
    limited to lawful termination, abandonment, death, assignment, eviction, or a
    Board order  in other words, the end of a tenancy in accordance with the Act.
    Nothing in the Act authorizes a landlord to take possession of a residential
    unit during an ongoing tenancy or assists the landlord in doing so.

[21]

None
    of this is surprising in the context of an Act that is designed to redress the
    imbalance in bargaining power between landlords and tenants. Occupancy limitations
    are at odds with the very scheme of the Act. This is confirmed by the core
    concepts in the Act  tenant and tenancy agreement  both of which are defined
    in s. 2(1) in terms of tenants
right to
    occupy
the units they rent.

[22]

The
    respondent sought to defend occupancy limitations by drawing a distinction
    between tenants right to occupy their rental units, on one hand, and the right
    of the landlord to take possession of those units on the other, asserting that
    the landlord does not take possession of the rental units or occupy them itself
    during the term in which occupation by the tenant is not permitted. This
    purported distinction is illusory. The denial of a tenants right to occupy the
    unit he or she has leased is the problem, and it is irrelevant whether the
    landlord has in some sense taken possession of the unit or simply denied the
    tenant access to it; in either case, the continuity of the tenancy has been
    broken in a manner inconsistent with the Act.

[23]

The
    Act specifically enumerates the forms of living accommodation that are exempt
    from the Act on the basis of seasonal or temporary occupation, and it is common
    ground that the land lease situation in this case is not included. Section 5(1)
    provides:

5
This
    Act 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, lodge,
    tourist camp, cottage or cabin establishment, inn, campground, trailer park,
    tourist home, bed and breakfast vacation establishment or vacation home;

[24]

In
    other words, rather than address seasonal or temporary accommodation
    arrangements in the context of leases covered by the Act, the Legislature
    exempted them all together.

[25]

Thus,
    the Divisional Courts concern that the Boards order would preclude the owner
    of a cottage and a tenant from including a term in a lease permitting the owner
    to occupy the cottage during certain limited times of the year, such as at
    Christmas, is misplaced. Cottage rentals are exempt from the Act by virtue of
    s. 5. Put another way, there is no need to interpret the Act to protect
    seasonal or temporary arrangements for living accommodations. The Legislature
    has adverted to the matter and determined the sorts of seasonal and temporary
    arrangements that are not covered by the Act.

[26]

In
    summary, the Act establishes security of tenure. Occupancy limitations are
    inconsistent with the Act and are rendered void by s. 4. The parties agreement
    to such limitations is simply irrelevant: freedom of contract values cannot be
    invoked to limit the protection the Act provides.

[27]

This
    is sufficient to dispose of the appeal, but because of the way in which the
    matter was argued, both before the Board and Divisional Court, I will discuss
    briefly the concept of reasonable enjoyment under s. 22 of the Act.

The right to reasonable enjoyment

[28]

Section
    22 of the Act provides as follows:

A landlord shall not at any time during a
    tenants occupancy of a rental unit and before the day on which an order
    evicting the tenant is executed substantially interfere with the reasonable
    enjoyment of the rental unit or the residential complex in which it is located
    for all usual purposes by a tenant or members of his or her household.

[29]

The
    Act does not define either the concept of reasonable enjoyment or substantial
    interference with it. These are vague terms that must be fleshed out by Board
    decisions in particular contexts, and a large body of Board case law has
    developed in this regard. In this case, the Board stated that the restriction
    of tenants access to rental units would be a substantial interference with
    the reasonable enjoyment of the rental units. The Divisional Court disagreed,
    stating as follows:

A reading of the ordinary sense of s. 22 of the
Act
does
    not lead to a determination that Upper Thames substantially interfered with the
    reasonable enjoyment of the Tenants
rental
units when
    these Tenants voluntarily agreed to the provision in the lease. To be clear, s.
    22 of the
Act
cannot be read as to indicate that any limitation to
    access to a rental unit during certain periods of time, agreed upon by both
    landlord and tenant, equates to a substantial interference by the landlord with
    the reasonable enjoyment of the rental units. To find otherwise would be to
    unnecessarily limit the ability of landlords and tenants to enter into flexible
    arrangements regarding the leasing of premises.

[30]

As
    I have explained, it was unnecessary for the Board to rely on s. 22. For its
    part, the Divisional Court erred by assuming occupancy limitations to be proper
    by virtue of the absence of a specific prohibition in the Act and tenants agreement
    to include them in their leases. This led the court to conclude that s. 22 was
    at the heart of the appeal, and it had to be interpreted in accordance with the
    parties freedom of contract.

[31]

The
    outcome in this case does not depend on the tenants right of reasonable
    enjoyment. The occupancy limitation in the leases is void because it is
    inconsistent with the Act as a whole and the nature of the tenancies it
    establishes and protects.

Disposition

[32]

I
    would allow the appeal and set aside the order of the Divisional Court.

[33]

The
    appellant is entitled to costs of the appeal in the agreed amount of $10,000,
    all inclusive. The costs in the Divisional Court are reversed. The interveners
    are not entitled to costs.

Released: February 16, 2022 P.L.

Grant
    Huscroft J.A.

I
    agree. P. Lauwers J.A.

I
    agree. S. Coroza J.A.


