North York Hospital v. Armstrong, (2004) 181 O.A.C. 153 (DC)

• Judge: R.A. Blair, R.S.J., Gravely and Epstein, JJ.
• Court: Superior Court of Justice of Ontario (Canada)
• Case Date: October 08, 2003
• Jurisdiction: Ontario
• Citations: (2004), 181 O.A.C. 153 (DC)

North York Hospital v. Armstrong (2004), 181 O.A.C. 153 (DC)

MLB headnote and full text

Temp. Cite: [2004] O.A.C. TBEd. JA.027

North York General Hospital Foundation (appellant) v. Janet Margaret Armstrong et al. (respondents)

(89/03)

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

Court of Ontario

Superior Court of Justice

Divisional Court

R.A. Blair, R.S.J., Gravely and Epstein, JJ.

January 7, 2004.

Summary:

The Imperial Order of Daughter's 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 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 dismissed the appeal.

Administrative Law - Topic 6164

Judicial review - Statutory appeal - Grounds for review - Error of law - Gen­eral - A tribunal found that the respondents were the owners of dwellings on leased land within the Tenant Protection Act's definition of "land lease homes" and the residential complex in which the homes were located was a "land lease community" as defined in the Act - Accordingly, Part V and other related sections and regulations applied - The applicant appealed pursuant to s. 196 of the Act - Section 196 au­thorized appeals on questions of law alone - The Ontario Divisional Court dismissed the appeal - A determination that someone was an "owner" under a statute involved a consideration of the factual and contractual underpinnings of the relationship between the parties and the application of those underpinnings to the provisions of the state - That was an exercise of mixed fact and law - See paragraphs 22 and 23.

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 Divisional Court rejected the asser­tion - See paragraphs 46 to 50.

Landlord and Tenant - Topic 7090

Mobile homes parks and land lease com­munities - Land lease community - What constitutes - The respondents were the "owners" of dwellings on land leased from the appellant within the definition of a "land lease home" under the Ontario Ten­ant Protection Act - The appellant asserted that Part V of the Act did not apply be­cause there were no rental units or com­mon use elements of which the appellant retained possession - If Part V applied, the respondents could sell their properties and assign the land lease without the appel­lant's consent - The Ontario Divisional Court rejected the appellants' assertion - The Act provided that a "'land lease com­munity' ... includes the rental units and the land, structures, services and facilities of which the landlord retains possession and that are intended for the common use and enjoyment of the tenants of the landlord" "Includes" meant "includes" not "means and includes" - Accordingly, the respon­dents' dwellings were part of a land lease community and Part V applied - See para­graphs 41 to 45.

Landlord and Tenant - Topic 7091

Mobile homes parks and land lease com­munities - Land lease home - What consti­tutes - The I.O.D.E. leased land to Garden Court 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 - The purchase agree­ments were couched in vendor/purchaser terms - The sublease gave Garden Court the right to repurchase the premises after October 31, 2016 - In 1999, the appellant acquired I.O.D.E.'s and Garden Court's interests in the land - Until 2001, all par­ties treated the respondents as owning the homes and leasing 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 asserted, inter alia, that the respondents were not "owners" within the definition of "land lease home" under the Tenant Protection Act and, therefore, Part V of the Tenant Protection Act did not apply - If Part V applied the respondents did not require the appellant's consent - The Ontario Divi­sional Court stated that, having regard to the nature of the relationship between the appellant and its predecessors and the respondents and their predecessors, as stipulated in the purchase agreements and the subleases and as reflected in their conduct over the years, the respondents were the "owners" of dwellings on leased land within the definition of "land lease home" - See paragraphs 22 to 40.

Landlord and Tenant - Topic 7182

Regulation - Appeals - Appealable deci­sions - [See Administrative Law - Topic 6164 ].

Landlord and Tenant - Topic 7184

Regulation - Appeals - Jurisdiction - An appellant landlord asserted that the Ontario Rental Housing Tribunal exceeded its jurisdiction by going beyond what it had earlier determined its jurisdiction to be - The Tribunal had concluded that its juris­diction was "limited to determining wheth­er the [Tenant Protection] Act or any provision of it applies and ... does not include determining what a particular provision of the Act means or how it applies" - The Tribunal then listed ques­tions that the appellant's application would be limited to answering - The Ontario Divisional Court stated that the impugned order answered the identified questions - The appeal was from that order and not from the reasons that were attached to the order - The Tribunal had jurisdiction to make the order - See paragraphs 51 to 53.

Landlord and Tenant - Topic 8203

Fixtures and personalty - Fixture - What constitutes - The Ontario Divisional Court stated that buildings could be owned sepa­rately from the ownership of the lands underneath them where the parties have agreed to that effect - In such circum­stances, the real property principle that buildings were fixtures on the land and thereby became part of the reality belong­ing to the owner of the land, did not apply - There had to be an agreement to replace the general rule - A tenant was not re­quired to have absolute control over the building during the term of the contractual arrangement or the right to remove build­ings at the end of the term - It was a ques­tion of interpreting the agreement and determining whether the buildings in ques­tion belonged to, or were the property of, or were "owned by" the tenant during the term of the agreement, having regard to the purposes and objects of the legislation in question - See paragraphs 35 to 39.

Real Property - Topic 4205

Fixtures - General principles - What con­stitutes a fixture - [See Landlord and Tenant - Topic 8203 ].

Statutes - Topic 2456

Interpretation - Interpretation of words and phrases - Interpretation and definition clauses - Use of words "include" and "in­cluding" - [See Landlord and Tenant - Topic 7090 ].

Words and Phrases

Includes - The Ontario Divisional Court considered the meaning of "includes" as used in the definition of "land lease com­munity" under s. 1(1) of the Tenant Pro­tection Act, S.O. 1997, c. 25 - See para­graphs 41 to 45.

Words and Phrases

Land lease community - The Ontario Divisional Court considered the meaning of "includes" as used in the definition of "land lease community" under s. 1(1) of the Tenant Protection Act, S.O. 1997, c. 25 - See paragraphs 41 to 45.

Words and Phrases

Land lease home - The Ontario Divisional Court considered the meaning of "owner" as used in the definition of "land lease home" under s. 1(1) of the Tenant Protec­tion Act, S.O. 1997, c. 25 - See paragraphs 22 to 40.

Words and Phrases

Owner - The Ontario Divisional Court considered the meaning of "owner" as used in the definition of "land lease home" under s. 1(1) of the Tenant Protection Act, S.O. 1997, c. 25 - See paragraphs 22 to 40.

Cases Noticed:

Dollimore v. Azuria Group Inc. (2001), 152 O.A.C. 57 (Div. Ct.), refd to. [para. 21].

Feingold v. College of Optometrists (Ont.) (1981), 123 D.L.R.(3d) 667 (Ont. Div. Ct.), refd to. [para. 21].

Housen v. Nikolaisen et al. (2002), 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1; 211 D.L.R.(4th) 577 (S.C.C.), refd to. [para. 24].

Kiwanis Club of Brantford v. Brantford (Township) and Regional Assessment Commissioner, Region No. 20 (1983), 1 O.A.C. 63 (Div. Ct.), refd to. [para. 26].

Devine v. Callery (1917), 40 O.L.R. 505 (C.A.), refd to. [para. 35].

Mediacom Inc. v. Toronto (City) et al. (1982), 38 O.R.(2d) 257 (H.C.), refd to. [para. 35].

Elitestone Ltd. v. Morris et al., [1997] 1 W.L.R. 687; 215 N.R. 161 (H.L.), dist. [para. 35].

Statutes Noticed:

Tenant Protection Act, S.O. 1997, c. 25, sect. 1(1), [para. 9]; sect. 105(1), sect. 108 [paras. 9, 46].

Authors and Works Noticed:

Cheshire and Burns, E.H., Modern Law of Real Property (13th Ed. 1982), p. 154 [para. 25].

Golden, David, Who's In, Who's Out: When Does the TPA apply - Special Cases (1998), p. 5 [para. 29, footnote 3].

Ontario, Ministry of Municipal Affairs and Housing, New Directions: Tenant Protec­tion Legislation (1996), p. 12 [para. 29].

Counsel:

Joseph Debono and Karen Groulx, for the appellant;

John D. Campbell, for the respondents, Wedge, Crossin, O'Brien and Briggs;

Cheryl Katz, in person.

This appeal was heard on October 8, 2003, by R.A. Blair, R.S.J., Gravely and Epstein, J., of the Ontario Divisional Court. R.A. Blair, R.S.J., delivered the following judg­ment for the court on January 7, 2004.