Joma Sailaway Enterprises Partnership v. Holden et al., 2009 ABQB 739

• Judge: Manderscheid, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: November 10, 2009
• Citations: 2009 ABQB 739;(2009), 484 A.R. 309 (QB)

Joma Sailaway Ent. v. Holden (2009), 484 A.R. 309 (QB)

MLB headnote and full text

Temp. Cite: [2009] A.R. TBEd. DE.131

Joma Sailaway Enterprises Partnership, a General Partnership between Joma Enterprises Ltd. and 411914 Alberta Ltd. (appellant) v. Louella Holden, Sabrina Nash (also known as Sabrina Way), Francine Close, Donna Smith Cole, Robert Littlejohn, Kevin Littlejohn, Nancy Littlejohn, Lorenz Langer-Virtel, Andrea Ganuelst, Beryl Sim, Leah Woods, Andrew McClure, Jayson Kyle Stewart, Merlyn Taylor, Margaret Taylor, Russ Taylor, Tammy Taylor (also known as Tammy Hodge), Brenda Bowe, Robyn Leia (also known as Robyn Foote), Nicholas Tuttle, Jonathan Sim, Debra Sim, Real Aresenault, Gladys Aresenault (respondents)

(0903 12740; 2009 ABQB 739)

Indexed As: Joma Sailaway Enterprises Partnership v. Holden et al.

Alberta Court of Queen's Bench

Judicial District of Edmonton

Manderscheid, J.

December 15, 2009.

Summary:

The plaintiffs purchased lands on which Parklane Mobile Home Park was located. In July 2008, the plaintiffs provided each mobile home tenant with a document titled "Tenant Newsletter, Parklane Mobile Home". The plaintiffs also served each tenant with a notice of rent increase under s. 16(1) of the Mobile Home Sites Tenancies Act. Some tenants (the defendants) did not pay the increased rent, asserting that the notice was void. The plaintiffs sought an order under the Act compelling the defendants to pay the plaintiffs arrears in rent.

The Alberta Provincial Court, in a decision reported at [2009] A.R. Uned. 701, found that the notice was not sufficient and did not meet the minimum requirements of s. 16(1) of the Act. The plaintiffs appealed.

The Alberta Court of Queen's Bench dismissed the appeal.

Landlord and Tenant - Topic 3947

Rent - Rent increases - Notice of increase - Form and contents - Section 16(1) of the Mobile Home Sites Tenancies Act provided that "[a] landlord shall not increase the rent payable under a tenancy agreement or recover any additional rent resulting from an increase unless the landlord gives to the tenant a written notice of the increase in rent at least 180 days before the date on which the increase is to be effective" - The Alberta Court of Queen's Bench stated that "in order for purported notice under s. 16 of the Act to comply with s. 16 and be considered valid, the notice must not only be in writing and set out the particulars of the rent increase; it must also be clear and unambiguous to a reasonable tenant [...]. If the notice could mislead or prejudice a reasonable tenant, it is not valid notice [...]. The notice should be precise and informative [...], but the validity of the notice should not rest on a narrow technicality [...]. A court must take a 'common sense' approach to interpreting the notice [...]. This approach also accords with my understanding of the purpose of both the legislation as a whole and s. 16 in particular. The requirement of a 'written notice' must be interpreted in a way that helps achieve the purposes of the legislation. A written notice that could prejudice a tenant cannot constitute valid notice in the meaning of the Act, because this would undermine the purposes of the Act generally (protecting the tenant, and setting out how each party can choose to exercise their respective rights) and s. 16 in particular (allowing the tenant to have 180 days to make a meaningful decision as to whether to terminate the lease and move, or accept the rent increase). A written notice that undermines the ability of the tenant to make a meaningful decision about whether they should exercise their rights undermines the object of the Act." - See paragraphs 45 and 46.

Landlord and Tenant - Topic 3947

Rent - Rent increases - Notice of increase - Form and contents - The plaintiffs purchased lands on which Parklane Mobile Home Park was located - In July 2008, the plaintiffs provided each mobile home tenant with a document titled "Tenant Newsletter, Parklane Mobile Home" - The plaintiffs also served each tenant with a notice of rent increase, under s. 16(1) of the Mobile Home Sites Tenancies Act - Some tenants (the defendants) did not pay the increased rent, asserting that the notice was void - The plaintiffs sought an order under the Act compelling the defendants to pay the plaintiffs arrears in rent - A Provincial Court judge found that the notice was not sufficient and did not meet the minimum requirements of s. 16(1) of the Act - The plaintiffs appealed - The Alberta Court of Queen's Bench dismissed the appeal - The notice was deficient in three ways: (1) the notice was not dated; (2) the notice was not signed; and (3) nowhere on the notice was the actual name of the present or future landlords - Given the absence of the landlord's name in the notice, it was not clear to a reasonable tenant reading the notice whether the notice was indeed legal, or for that matter, a mistake - Further, given the fact that on or before July 31, 2008, the plaintiffs did not provide the defendants with any notice as to a change in ownership of the lands, change of landlord, or change of address for the landlord, a reasonable tenant could have been misled or prejudiced by the notice - It followed that the notice to increase rent was void and of no force or effect and no arrears of rent existed - See paragraphs 47 to 62.

Landlord and Tenant - Topic 3950

Rent - Rent increases - Invalid notice - Effect of - Section 16(1) of the Mobile Home Sites Tenancies Act provided that "[a] landlord shall not increase the rent payable under a tenancy agreement or recover any additional rent resulting from an increase unless the landlord gives to the tenant a written notice of the increase in rent at least 180 days before the date on which the increase is to be effective" - The Alberta Court of Queen's Bench held that "[t]he language of section 16(1) is mandatory" - As a result, if the court determined that the notice of a rent increase did not comply with the provisions of the Act, then such failure to do so would result in a non-effective and void notice - See paragraphs 21 to 25.

Landlord and Tenant - Topic 7009

Regulation - General principles - Interpretation of legislation - The Alberta Court of Queen's Bench discussed the purposes of landlord/tenant legislation and the intention of the Legislature - The court stated that "landlord/tenant legislation such as the [Mobile Home Sites Tenancies] Act has two primary purposes. The first underlying premise of legislation such as the Act is that it is designed to provide reasonable protection to mobile home park tenants. Legislative regulation of the interactions of landlords and tenants is common-place in Canada, as legislators make '... an attempt to redress the imbalance of power inhering in the landlord-tenant relationship ...' [...] As such, courts have generally recognized that one of the main purposes of residential tenancy legislation is to protect the tenant." - See paragraphs 16 to 18.

Landlord and Tenant - Topic 7009

Regulation - General principles - Interpretation of legislation - Section 16(1) of the Mobile Home Sites Tenancies Act provided that "[a] landlord shall not increase the rent payable under a tenancy agreement or recover any additional rent resulting from an increase unless the landlord gives to the tenant a written notice of the increase in rent at least 180 days before the date on which the increase is to be effective" - The Alberta Court of Queen's Bench stated that "it is clear that the purpose of s. 16 is to protect the tenant from unanticipated rent increases that would (because of the unique nature of mobile homes) cause significant harm to the tenant. [...] Section 16 is one example of how the Legislature decided to strike a balance between the proprietary rights of landlords and tenant protection: landlords are allowed to raise the rent, but tenants must be given meaningful notice, and given the option to terminate the lease. To this extent, an interpretation that allows both sides to make a meaningful decision about whether to take advantage of their procedural rights should be preferred over one that focuses on technicalities." - See paragraph 20.

Landlord and Tenant - Topic 7186

Regulation - Appeals - Standard of appellate review - The plaintiffs purchased lands on which Parklane Mobile Home Park was located - In July 2008, the plaintiffs provided each mobile home tenant with a document titled "Tenant Newsletter, Parklane Mobile Home" - The plaintiffs also served each tenant with a notice of rent increase, under s. 16(1) of the Mobile Home Sites Tenancies Act - Some tenants (the defendants) did not pay the increased rent, asserting that the notice was void - The plaintiffs sought an order under the Act compelling the defendants to pay the plaintiffs arrears in rent - A Provincial Court judge found that the notice was not sufficient and did not meet the minimum requirements of s. 16(1) of the Act - The plaintiffs appealed - The Alberta Court of Queen's Bench directed that the appeal proceed by way of an appeal de novo - The court would consider both the affidavits filed in Provincial Court and the new affidavits filed in the appeal, as well as viva voce evidence - See paragraphs 12 and 13.

Landlord and Tenant - Topic 7189

Regulation - Appeals - Evidence - [See Landlord and Tenant - Topic 7186 ].

Words and Phrases

Notice - The Alberta Court of Queen's Bench discussed the term "notice" as used in s. 16 of the Mobile Home Sites Tenancies Act, R.S.A. 2000, c. M-20 - See paragraphs 26 to 46.

Cases Noticed:

Osman v. Capital Region Housing Corp. (2004), 365 A.R. 198; 2004 ABQB 673, refd to. [para. 12].

Rizzo & Rizzo Shoes Ltd. (Bankrupt), Re, [1998] 1 S.C.R. 27; 221 N.R. 241; 106 O.A.C. 1; 154 D.L.R.(4th) 193, refd to. [para. 15].

Reference Re Residential Tenancies Act (N.S.), [1996] 1 S.C.R. 186; 193 N.R. 1; 149 N.S.R.(2d) 1; 432 A.P.R. 1; 131 D.L.R.(4th) 609, refd to. [para. 16].

Kasprzycki v. Abel (1986), 55 O.R.(2d) 536; 38 A.C.W.S.(2d) 386 (Dist. Ct.), refd to. [para. 17].

Jones v. Janz (1999), 245 A.R. 151; 1999 ABQB 433 (Master), refd to. [para. 17].

Canada Mortgage and Housing Corp. v. Arbitration Review Panel, [1997] B.C.T.C. Uned. 533 (S.C.), refd to. [para. 17].

R. v. Morgentaler, [1993] 3 S.C.R. 463; 157 N.R. 97; 125 N.S.R.(2d) 81; 349 A.P.R. 81; 107 D.L.R.(4th) 537, refd to. [para. 20].

Wolkow v. Dunnell (1998), 112 O.A.C. 102; 40 O.R.(3d) 783; 165 D.L.R.(4th) 375 (C.A.), refd to. [para. 23].

R. v. Zaccaria (N.G.), [2004] A.R. Uned. 320; 6 M.V.R.(5th) 70; 2004 ABCA 305, refd to. [para. 30].

Amadon Properties Ltd. v. Pacific Apparel Inc. (1990), 13 R.P.R.(2d) 186; 23 A.C.W.S.(3d) 76 (B.C.S.C.), refd to. [para. 31].

Dagger v. Shepherd, [1946] 1 All E.R. 133; [1946] 1 K.B. 215 (C.A.), refd to. [para. 32].

Gardner v. Ingram (1889), 61 L.T. 729, refd to. [para. 32].

Bromley Holdings (Alberta) Ltd. v. Goodman (1987), 89 A.R. 56; 8 A.C.W.S.(3d) 234 (Q.B. Master), refd to. [para. 33].

Hankey v. Clavering, [1942] 2 All E.R. 311; [1942] 2 K.B. 326 (C.A.), refd to. [para. 33].

Carradine Properties Ltd. v. Aslam, [1976] 1 All E.R. 573; [1976] 1 W.L.R. 442, refd to. [para. 34].

Mannai Investment Co. v. Eagle Star Life Assurance Co., [1997] 3 All E.R. 352; 215 N.R. 321; [1997] UKHL 19, refd to. [para. 36].

Agrium Inc. v. DynAgra Corp. (2006), 384 A.R. 122; 367 W.A.C. 122; 2006 ABCA 80, refd to. [para. 36].

Goodyear Canada Inc. v. Burnhamthorpe Square Inc. et al. (1998), 116 O.A.C. 1; 41 O.R.(3d) 321; 166 D.L.R.(4th) 625 (C.A.), refd to. [para. 36].

Dick v. Sarchuk, [1944] 1 D.L.R. 683 (Alta. S.C.), refd to. [para. 37].

Atkinson et al. v. Metropolitan Toronto (Municipality), [1978] 1 S.C.R. 918; 16 N.R. 153; 78 D.L.R.(3d) 142, refd to. [para. 38].

Bhagwandin v. Wright (1988), 28 O.A.C. 146; 65 O.R.(2d) 204; 51 D.L.R.(4th) 589 (C.A.), refd to. [para. 39].

Murray v. Kerton (1997), 50 O.T.C. 248; 76 A.C.W.S.(3d) 177 (Gen. Div.), refd to. [para. 39].

Krakus Apartments Ltd. v. Stanga et al. (1978), 20 O.R.(2d) 642; 88 D.L.R.(3d) 432 (Co. Ct.), refd to. [para. 40].

Kochar International Inc. v. McKay et al. (1997), 155 Sask.R. 45; 70 A.C.W.S.(3d) 1078 (Q.B.), refd to. [para. 41].

Statutes Noticed:

Mobile Home Sites Tenancies Act, R.S.A. 2000, c. M-20, sect. 2, sect. 16, sect. 20 [para. 10].

Authors and Works Noticed:

Alberta, Hansard, Legislative Assembly Debates (April 30, 1982), p. 881 [para. 19].

Alberta, Hansard, Legislative Assembly Debates (May 3, 1982), p. 916 [para. 20].

Alberta, Law Reform Institute, Mobile Homes - Background Paper No. 8, Residential Tenancies Project (1975), generally [para. 18].

Alberta, Law Reform Institute, Tenancies of Mobile Homes Sites, Report No. 28 (1978), generally [para. 18].

Hansard (Alta.) - see Alberta, Hansard, Legislative Assembly Debates.

Stroud's Judicial Dictionary of Words and Phrases (7th Ed. 2006), generally [paras. 30, 54].

Counsel:

Terrence N. Lysak (McCuaig Desrochers LLP), for the appellant;

J.R. (Roy) Nickerson, Q.C. (Nickerson Roberts Holinski & Mercer), for the respondents.

This appeal was heard on November 10, 2009, by Manderscheid, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following reasons for judgment on December 15, 2009.