North York Hospital v. Armstrong, (2005) 202 O.A.C. 131 (CA)

• Judge: Feldman, Simmons and Gillese, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: February 02, 2005
• Jurisdiction: Ontario
• Citations: (2005), 202 O.A.C. 131 (CA)

North York Hospital v. Armstrong (2005), 202 O.A.C. 131 (CA)

MLB headnote and full text

Temp. Cite: [2005] O.A.C. TBEd. SE.027

In the Matter of the Tenant Protection Act, 1997, S.O. 1997, C. 24

North York General Hospital Foundation (appellant) v. Janet Margaret Armstrong, Harry Joseph Boyle, Martin Edward Briggs, Anne Josephine Briggs, Donna Bromley, Linda May Crossin, Gail Culp, Joseph Culp, Elizabeth Ruth Elmsley, John Anthony Allan Hakes, David Hewitt, Elizabeth Hewitt, Barbara Joan Howard, Linda Leigh Jackson, Cheryl Katz, Fred Leber, Catherine Alma Leber, Amir Mamdani, Parin Mamdani, Neil Francis Morrison, Mary Cecilia Morrison, Beverley Jill O'Brien, Brendan O'Brien, Robert Alexander Orr, Joanne Orr, Gary Peacock, Vasilios Polychronopoulos, Roberta Zane Polychronopoulos, Colleen Anne Reid, Hilary M. Rider, Gretchen Judith Thomas, Edward Alexander Thomas, Terry Turner, Suzanne Turner, John Richard Ward, Irene Ward, Philip Lomas Wedge, Elisabeth Ann Wedge, Francie Roslyn Wise, Don Eng Yalonetsky and Tanya Miriam Yalonetsky (respondents)

(C42467)

Indexed As: North York General Hospital Foundation v. Armstrong et al.

Ontario Court of Appeal

Feldman, Simmons and Gillese, JJ.A.

August 31, 2005.

Summary:

The Imperial Order of the Daughters of the Empire Children's Hospital (I.O.D.E.) leased land to Garden Court Agencies under a 99 year lease. In the early 1970's, Garden Court exercised its right under the lease to build and sublet homes on the land. The respondents purchased the homes by way of an agreement of purchase and sale followed by a long term sublease of the land. In 1999, the appellant acquired I.O.D.E.'s and Garden Court's interests in the land. In 2001, the appellant took the position that the respondents could not sell their properties and assign the land lease without the appellant's consent. The appellant sought a determination of whether Part V of the Tenant Protection Act and associated provisions applied to the homes and extensive related relief. The Ontario Rental Housing Tribunal found that the respondents were the owners of dwellings on leased land within the Act's definition of "land lease homes" and that the residential complex was a "land lease community" as defined in the Act. Accordingly, Part V and other related sections and regulations applied to the homes. The effect of the order was that the respondents had the right to sell or lease their homes without the appellant's consent. The appellant appealed.

The Ontario Divisional Court, in a decision reported at 181 O.A.C. 153, dismissed the appeal. The appellant appealed.

The Ontario Court of Appeal dismissed the appeal.

Landlord and Tenant - Topic 7088

Regulation - Mobile homes parks and land lease communities - Sale or lease of home - Landlord's consent - The Ontario Rental Housing Tribunal found that the respondents were the owners of "land lease homes" in a "land lease community" as defined in the Ontario Tenant Protection Act and, therefore, Part V of the Act including ss. 105 and 108 applied - Section 105 gave a tenant "...  the right to sell or lease his or her mobile home without the landlord's consent" - Section 108 prohibited a landlord from refusing to consent to an assignment of a mobile home site on grounds specified in s. 17(2)(b) or 17(3)(c), if the assignee had purchased or entered into an agreement to purchase the mobile home on the site - The appellant lessor asserted that s. 105 only made sense in the context of a mobile home which could be moved and disposed of separate from the land upon which it was situate and that it could not be applied to a land lease home since a sale required an assignment of the tenancy arrangement - The Ontario Court of Appeal rejected the assertion - See paragraphs 35 to 43.

Landlord and Tenant - Topic 7088

Regulation - Mobile homes parks and land lease communities - Sale or lease of home - Landlord's consent - Part V of the Ontario Tenant Act dealt with mobile home parks and land lease communities - Section 108, which came within Part V, prohibited a landlord from refusing to "...  consent to the assignment of a site for a mobile home on a ground set out in clause 17(2)(b) or 17(3)(c) if the potential assignee has purchased or has entered into an agreement to purchase the mobile home on the site" - The Ontario Court of Appeal stated that ss. 17(2) and s. 17(3) dealt with distinct issues - Section 17(2) dealt with consent to an assignment - Section 17(3) dealt with consent to an assignment to a potential assignee (a "specific assignment") - Before seeking consent for a specific assignment, a tenant was entitled to obtain confirmation concerning whether the landlord was generally prepared to entertain an assignment (an "assignment in principle") - Ordinarily (i.e., where Part V did not apply), s. 17(2)(b) and s. 17(2)(c) reserved to the landlord an absolute discretion to refuse to consent to an assignment in principle - Section 108 and s. 17 did not conflict - Rather, s. 108 referred specifically to the portions of s. 17 that did not apply once a potential assignee had purchased (or entered into an agreement of purchase and sale respecting) a mobile home or land lease home on a rental unit but preserved the landlord's right to assess whether a potential assignee was an appropriate tenant - Further, s. 105(1) did not conflict with s. 17 nor did it change the interplay between ss. 108 and s. 17 - See paragraphs 44 to 59.

Statutes Noticed:

Tenant Protection Act, S.O. 1997 c. 24, sect. 17(2), sect. 17(3) [paras. 30, 44]; sect. 105(1) [paras. 28, 35]; sect. 108 [paras. 28, 41, 44].

Counsel:

Joseph Debono, for the appellant;

Cheryl Katz, in person;

John D. Campbell, for the respondents Wedge, Crossin, and Briggs.

This appeal was heard on February 2, 2005, by Feldman, Simmons and Gillese, JJ.A., of the Ontario Court of Appeal. The following decision of the court was released on August 31, 2005.