IN THE SUPREME COURT OF BRITISH COLUMBIA
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Citation: |
977230 Alberta Ltd. v. Boire, |
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2019 BCSC 66 |
Date: 20190121
Docket: S177627
Registry: Vancouver
Between:
977230 Alberta Ltd.
Petitioner
And
Albert Boire, Amber Wideman, Angela Ivancic, Brody Wegener, Bruce Green, Cameron Entz & Valerie Huot, Cameron Stevens, Cara & Jerry Snider, Catherine Lattin, CBZ Enterprises Ltd., Cedric Vincendeau, Chad Beaton, Chad McLarty, Christopher Cass, Clint & Christine Fontaine, Cory Smith, Courtney Wideman, Curtis Ross, Darrell & Laurie Szczerba, Darren Van Impe, Darryl Binnion, Dave & Teresa Prystupa, Dean Schwartz, Deborah Wideman, Dennis Davis, Dennis Landry, Dennis Tario, Don Smith, Erika & Nils Wingert, Gregory Poncelet, Hank & Teresa Timmer, Jacy Osmachenko, Jason North, Jennifer & Tony Wolsey, Jeremy Stasiuk, Jim Oberheitmann, Jodi Egeborn, John MacPherson, John Okoyee, Julie Christina Steadman, Keith Powell, Ken Hong Chu, Kevin & Alisha Brown, Kevin Budd, Kevin George & Karen Duke, Kris Miller & John Wegleitner, Lee Ann Van Impe & Michael Crawford, Lisa Baldwin & Darryl Jones, Lisa Marion & Bob Taylor, Lori Bonesky, Lyle Ollenberger, Marc & Myrina Poncelet, Marc Gottwald, Marvin & Joanne Atkinson, Michael & Crystal Prowse, Mike & Cheryl Stankewich, Mitch Dunphy, Murray Patterson, Pamela & Murray Sword, Philip Wideman, Randy & Tammy Pevlin, Reg & Kara Patterson, Renee Smith, Robert & Charlotte Fisher, Robert Eager, Robert Price, Robert Reed, Robert Urbanoski, Ronald & Shirley Wayte, Sharon Poynter & Kevin Bampfield, Sheila Raju, Stacey Robertson, Stacey Theberge, Stephen Kapsha, Ted, Alda & Winston Watchorn, Thor Einarson, Trent Sundgaard, Trevor Segstro, and Vander Heyden Ayukawa
Respondents
Before: The Honourable Madam Justice Forth
Reasons for Judgment
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Counsel for the Petitioner: |
J.R. Schmidt C. Grisdale |
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Counsel for the Respondents Albert Boire, Amber Wideman, Angela Ivancic, Brody Wegener, Bruce Green, Cameron Entz, Valerie Huot, Cameron Stevens, Cara Snider, Jerry Snider, Catherine Lattin, CBZ Enterprises Ltd., Cedric Vincendeau, Chad Beaton, Chad McLarty, Clint Fontaine, Christine Fontaine, Cory Smith, Curtis Ross, Courtney Wideman, Darrell Szczerba, Laurie Szczerba, Darren Van Impe, Darryl Binnion, Dave Prystupa, Teresa Prystupa, Deborah Wideman, Dennis Davis, Dennis Landry, Dennis Tario, Don Smith, Erika Wingert, Nils Wingert, Gregory Poncelet, Hank Timmer, Teresa Timmer, Jacy Osmachenko, Jason North, Jennifer Wolsey, Tony Wolsey, Jeremy Stasiuk, Jim Oberheitmann, John Okoyee, Julie Christina Steadman, Keith Powell, Kevin Brown, Alisha Brown, Kevin Budd, Kevin George, Karen Duke, Lee Ann Van Impe, Michael Crawford, Lisa Baldwin, Darryl Jones, Lisa Marion, Bob Taylor, Lori Bonesky, Marc Poncelet, Myrina Poncelet, Marc Gottwald, Marvin Atkinson, Joanne Atkinson, Michael Prowse, Crystal Prowse, Mike Skankewich, Cheryl Stankewich, Murray Patterson, Pamela Sword, Murray Sword, Philip Wideman, Randy Pevlin, Tammy Pevlin, Reg Patterson, Kara Patterson, Renee Smith, Robert Fisher, Charlotte Fisher, Robert Eager, Robert Price, Robert Urbanoski, Sharon Poynter, Kevin Bampfield, Stacey Robertson, Stacey Theberge, Stephen Kapsha, Thor Einarson, Trent Sundgaard, Trevor Segstro, and Vander Heyden Ayukawa: |
E.M. Ito S. Farsai
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Place and Date of Hearing: |
Vancouver, B.C. August 14 and 16, 2018 |
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Place and Date of Judgment: |
Vancouver, B.C. January 21, 2019 |
[1] In this proceeding, the petitioner, 977230 Alberta Ltd., (“977”), asks the court for declarations and orders compelling the respondents to vacate property owned by 977. The parties agree that the only issue to be addressed arising from the petition is whether the Manufactured Home Park Tenancy Act, S.B.C. 2002, c. 77, as amended [MHPTA] applies on these facts, and if so, what flows from that.
[2] The respondents who responded to the petition (the “Boire Respondents”) and the respondents who did not respond to the petition will be referenced as the Non–Participating Respondents. The Boire Respondents were represented by counsel at the hearing. The Non-Participating Respondents are: Christopher Cass, Dean Schwartz, Jodi Egeborn, John Macpherson, Ken Hong Chu, Kris Miller, John Wegleitner, Lyle Ollenberger, Mitch Dunphy, Robert Reed, Ronald and Shirley Wayte, Sheila Raju, and Ted, Alda, and Winston Watchorn.
[3] This proceeding concerns an undivided parcel of lands (“Lot 4”) on Lake Koocanusa located in the Regional District of East Kootneys (“RDEK”).
[4] Lot 4 was originally owned by Marcer Ranching Ltd. (“Marcer”). Marcer, through its principal shareholder, president, and sole director, Craig McMorran, developed a real estate project on Lot 4 known as the Sweetwater Resort (the “Resort”). The Resort included a number of bare land strata lots in two strata plans, further development lands, a recreational vehicle park (the “RV Lands”), and a marina.
[5] The RV Lands are approximately 127 acres and contain approximately 148 sites located in Lot 4.
[6] By 2011, Marcer had granted mortgages to 977, registered against title to Lot 4. Dennis Hockett is the owner and president of 977.
[7] In 2013, the RDEK enacted a bylaw that required a permit to operate a campground. No permit was granted to operate a campground on Lot 4. The petition refers to the RV Lands as a campground.
[8] In January 2014, 977 commenced foreclosure proceedings against Marcer. None of the respondents named in this petition were named as a party in the foreclosure proceedings. During the foreclosure proceedings the following orders were made:
a. An order nisi granted on June 15, 2015; and
b. An order absolute granted on April 21, 2016 (the “Order Absolute”) and filed in the Land Title Office on September 21, 2016.
[9] Since the pronouncement of the Order Absolute, 977 is the sole legal and beneficial owner of Lot 4.
[10] 977 is also the owner of Koocanusa Village Utility Company, which provides and controls access to sewer, power, and water to the Resort.
[11] The respondents principally reside in Alberta. The petition identifies the respondent Don Smith as residing in Saskatchewan and respondent Thor Einarson as residing in British Columbia.
[12] The Boire Respondents all occupy one lot of the RV Lands and use it for recreational purposes. There were different arrangements, representations, and promises made between some of the Boire Respondents and Marcer. Despite the agreements that were reached, the Land Title Act, R.S.B.C. 1996, c. 250, precluded, Marcer from transferring title to any of the RV Lands since there was no subdivision plan in place.
[13] Some of the Boire Respondents began to develop the RV Lands in 2011 and 2012 with the installation of decks and septic tanks.
[14] After the foreclosure proceedings were commenced, Marcer purported to grant leases (“Lease Agreements”) to the Boire Respondents. The key features of the Lease Agreements were:
a. The agreements are titled “Lease Agreement”;
b. Parties are identified as “Landlord” and “Tenant”;
c. The preamble to the Lease Agreement states it constitutes a lease between the parties, whose intent is that it is a “completely carefree net lease to the Landlord”;
d. The tenancies are for a fixed term of 50 years;
e. The lease is for a specific site number within the RV Lands;
f. Tenants have the right, once utilities are installed, to purchase their lots in fee simple for an additional cost of $15,000;
g. Tenants are provided the right to install equipment, fixtures, and improvements to their properties including decks, patios, landscaping, and shrubbery at their own cost, which shall be deemed to be fixtures and remain on the properties upon the termination of this lease;
h. The tenants may sublet their properties provided certain conditions (landlord approval, execution of a sublease, payment of administration fees) are met;
i. The tenants are provided exclusive use and occupation of their properties, subject to the landlord’s right to inspect the property at reasonable times;
j. The tenants are responsible for the repair and maintenance of their properties;
k. The tenants may make alterations or additions to their properties with the consent of the landlord; and
l. The Lease Agreements were to be registered on the title by the Landlord for the benefit of the Tenant.
[15] None of the Lease Agreements were filed in the Land Title Office against title to Lot 4.
[16] After signing the Lease Agreements, the Boire Respondents, began occupying the properties. The Boire Respondents submit that they commenced developing their properties in accordance with the Lease Agreement and the developments included:
a. Construction of permanent living accommodation structures, including mobile homes and park models;
b. Construction of decks and patios;
c. Construction of garages, sheds, or other detached buildings;
d. Construction of underground and above ground water tanks and sewage tanks; and
e. Stairways and fences.
[17] The petitioner argues that this was all done without its knowledge or consent.
[18] The Boire Respondents assert that as early as 2012, Mr. Hockett, the owner and president of the petitioner company, had knowledge of the circumstances including how many of the Boire Respondents had purchased property, the developments that had been undertaken, and their use and enjoyment of the properties.
[19] The Boire Respondents pay no rent for the use of the RV Lands.
[20] No sewer, water or power services are being provided to the RV Lands and no services are available, including fire services.
[21] On March 28, 2017, 977 sent an email to RDEK, suggesting a plan for the respondents to remain in the RV Lands while Lot 4 was brought into compliance with the applicable bylaws.
[22] On April 11, 2017, the RDEK replied stating that the respondents could not remain in the RV Lands in contravention of the RDEK’s bylaws. The email stated, in part: “…RDEK cannot support a use of [the RV Lands] that is contrary to RDEK’s own bylaws and/or covenants…That was our message to the previous owner and is consistent with our message to yourself.”
[23] On May 16, 2017, 977 received a letter from the RDEK’s counsel (“RDEK letter”) which addressed Lot 4’s bylaw compliance. The RDEK letter stated that Lot 4 was in violation of RDEK bylaws, specifically:
a. RDEK Sweetwater Zoning and Floodplain Management Bylaw No. 2127, 2009;
b. RDEK Campground Bylaw No. 2403, 2012;
c. RDEK Building Regulation Bylaw No. 1735, 2004; and
d. RDEK Subdivision Servicing Bylaw No. 1954, 2008.
(collectively, “RDEK Bylaws”)
[24] The RDEK letter also noted that if 977 failed to remedy the covenant and by law infractions by July 1, 2017, the RDEK may take action against it. An order was enclosed with the RDEK letter (the “RDEK Order”) directing 977 to bring Lot 4 into compliance with the RDEK Bylaws, and specifically directing that the following activities cease:
a. The use of Lot 4 as a campground;
b. The use of Lot 4 without approved servicing; and
c. Construction on Lot 4 without proper building permits.
[25] This petition was filed on August 14, 2017. The amended petition was filed on September 8, 2017.
[26] On December 6, 2017 the Boire Respondents filed a response. The response was amended on June 27, 2018 to plead that: (1) the MHPTA governed and applied to this dispute; (2) this Court was without jurisdiction to grant the remedies sought by the petitioner pursuant to s. 77.1 of the MHPTA; and (3) or that the petitioner had failed to comply with the MHPTA required to end a tenancy and was therefore not entitled to the relief sought in the petition.
[27] On May 9, 2018, the Boire Respondents filed an application to convert the petition into an action (“Conversion Application”).
[28] The hearing of that application took place before Madam Justice Adair on May 11, 22, and 29, 2018, with oral reasons pronounced on May 31, 2018, indexed as 2018 BCSC 927 (“Reasons”). In the result, the Conversion Application was dismissed. On May 11, 2018, Adair J. granted the petitioner leave to file an amended petition.
[29] The proposed triable issues raised by the Boire Respondents in the Conversion Application are set out in the Reasons at para. 14:
(a) Did Mr. Hockett (who is 977's president) have actual or constructive notice of the Respondents’ unregistered equitable and beneficial interest in the RV Lots, such that this knowledge constitutes equitable fraud, pursuant to s. 29(2) of the Land Title Act?
(b) Do the RV Leases run with the land such that non-compliance with the covenant for subdivision does not render the RV Leases invalid and unenforceable as between the Petitioner and the Respondents, pursuant to s. 73.1 of the Land Title Act?
(c) Did Mr. Hockett, on behalf of the Petitioner, make representations to the Respondents, through words or conduct, such that he promised or assured the Respondents of their right to remain on the RV Lots subsequent to the foreclosure proceedings?
(d) Does the Manufactured Home Park Tenancy Act apply to this proceeding?
(e) If the Manufactured Home Park Tenancy Act applies, did the Petitioner, as landlord, breach its obligations owed to the Respondents, as tenants, pursuant to the Manufactured Home Park Tenancy Act, such that damages and/or administrative penalties should be awarded pursuant to s. 51(2) and (4) of the Manufactured Home Park Tenancy Act?
(f) If the Manufactured Home Park Tenancy Act does not apply, has the Petitioner breached the common law covenant of quiet enjoyment, entitling the Respondents to damages?
[30] Justice Adair dealt with all issues except for the ones relating to the MHPTA listed as items (d), (e), and (f) of para. 28 (the “MHPTA issues”) since counsel for the Boire Respondents conceded that such issues could be dealt with by way of a petition: at para. 28.
[31] At paras. 23–25, Adair J. comments on the other triable issues raised:
[23] Here, neither the response to petition nor the Opponents’ affidavits assert facts that would be sufficient to create a triable issue with respect to the assertions of equitable fraud. There is nothing to suggest that 977 acted outside the normal course of business or violated any principle of common morality.
[24] In my view, there is also nothing in the response to petition that raises a triable issue under s. 73.1 of the Land Title Act. There is no assertion that 977 is a landlord in relation to the Opponents or has or could have any obligations as such. Moreover, I agree with Mr. Schmidt’s submission that s. 73.1, properly interpreted, does not give a lessee any in rem right in the land or any equity of redemption. In that light, the RV Leases, which are unregistered long-term leases of unsubdivided land, are contrary to s. 73 of the Land Title Act, and (as Newbury J.A. found in International Paper Industries Ltd. v. Top Line Industries Inc. (1996), 20 B.C.L.R. (3d) 41 (C.A.)) they are void ab initio. They cannot create any interest in land.
[25] Further, in my opinion, the Opponents have failed to raise any bona fide triable issue with respect to their assertions of estoppel. I note in any event that such a defence or claim would be individual. Respondent B could not rely on conduct or representations made to Respondent A to advance Respondent B’s defence or claim, nor could any detrimental reliance on the part of Respondent A assist Respondent B. The allegations in the response to petition and in the affidavits of three of the Opponents fail, in my opinion, to advance evidence of conduct that might be detrimental reliance for purposes of an estoppel, and therefore fail to raise a defence that deserves to be tried.
[Emphasis added.]
[32] The second amended petition was filed on August 30, 2018. It included allegations of continued trespass under its factual basis, set out at paras. 126–128, and permitted the addition of the following order sought:
An order requiring the Respondents to forthwith vacate the Lands as a consequence of, and to effect compliance with, the RDEK Order (defined below).
[33] The pleadings, submissions, and evidence raise the following issues:
1. Does the MHPTA apply to the properties at issue?
2. If the MHPTA applies, what remedies should be granted?
3. Is the evidence of Mr. Hockett’s knowledge relevant to the MHPTA issues to be determined?
[34] The petitioner objects to hearsay evidence being admitted concerning matters going beyond whether the MHPTA applies, including reference to evidence of what Mr. Hockett knew or did not know.
[35] On the application of the MHPTA, the petitioner submits:
a. The Boire respondents bear the burden of establishing the MHPTA applies to each of them.
b. The law in British Columbia is that the MHPTA does not apply to seasonal accommodations and instead requires that the premises at issue be the principal residence of whomever it may be asserted as the tenant.
c. At the same time, the MHPTA expressly does not apply to permanent structures.
d. None of the Boire respondents has established that he, or she or it (or his, her or its “accommodations” or premises on Lot 4) falls within the scope of the MHPTA.
e. Further, or alternatively, the [Lease Agreements] create no enforceable in rem right against 977. Rather, at most, some are mere licenses, creating enforceable in personam rights against Marcer. This is insufficient, at law, to create a tenancy under the MHPTA. Those of the [Lease Agreements] not entered into with Marcer are of no effect whatsoever, either at common law or under the MHPTA.
f. In any event, it is not open to any of the Boire respondents to assert that the MHPTA applies in a way to bar the relief sought in the petition. That is because each of them has participated actively in the proceeding, including on the Conversation Application, and none of them has every [sic] applied for a stay of this proceeding. Alternatively, the Court clearly has co-extensive jurisdiction to deal with any matters arising here relating to the MHPTA.
[36] On the application of the MHPTA, the Boire Respondents submit:
a. The MHPTA governs and applies to this dispute such that upon foreclosure of the RV Lands, the Petitioner took the lands subject to the Respondents’ existing tenancies. The Director retains exclusive jurisdiction to inquire into, hear and determine all matters and questions of facts, law and discretion in a dispute hearing. As a result, this Honourable Court is without jurisdiction to grant the orders sought by the Petitioner.
b. In the alternative, pursuant to s. 51(4) of MHPTA, upon application of a party, this Court, may hear a dispute that is linked substantially to a matter that is currently before the Supreme Court and on hearing the dispute make any order that the director may make under the MHPTA. As a result, should the Honourable Court determine (a) that such an application has been made; and (b) that these proceedings are substantially linked to matters of fact and law which arise under the MHPTA, it then has the authority to make the same orders a director appointed under the act may make. However, the Petitioner has failed to comply with the basic notice and form requirements to end tenancies pursuant to s. 45 of the MHPTA to this dispute.
c. The
invalidity of the Lease Agreements pursuant to s. 73 of the [Land Title
Act, R.S.
B.C. 1996, c. 250] does not void the Respondents’ tenancy agreements and is
no bar to the application of the MHPTA to this dispute.
d. The Order Absolute pronounced on April 21, 2016 in the foreclosure proceedings has no effect on the Respondents rights in the RV Lands pursuant to s. 86 of the MHPTA as the Respondents were never made a party to the foreclosure proceedings.
[37] Section 1 of the MHPTA provides, in part, the following definitions:
"manufactured home" means a structure, other than a float home, whether or not ordinarily equipped with wheels, that is
(a) designed, constructed or manufactured to be moved from one place to another by being towed or carried, and
(b) used or intended to be used as living accommodation;
"manufactured home park" means the parcel or parcels, as applicable, on which one or more manufactured home sites that the same landlord rents or intends to rent and common areas are located;
"manufactured home site" means a site in a manufactured home park, which site is rented or intended to be rented to a tenant for the purpose of being occupied by a manufactured home;
"tenancy" means a tenant's right to possession of a manufactured home site under a tenancy agreement;
"tenancy agreement" means an agreement, whether written or oral, express or implied, between a landlord and a tenant respecting possession of a manufactured home site, use of common areas and services and facilities;
[38] Section 2(1) states that the MHPTA applies to tenancy agreements, manufactured home sites, and manufactured home parks.
[39] Pursuant to s. 4 the MHPTA does not apply to:
(a) a tenancy agreement under which a manufactured home site and a manufactured home are both rented to the same tenant;
(b) prescribed tenancy agreements, manufactured home sites or manufactured home parks
[40] The petitioner submits that for the MHPTA to apply to this dispute the Boire Respondents’ structures must meet the definition of “manufactured home” from s. 1 of the MHPTA. It says that this definition does not apply in this case because such an interpretation would run contrary to the plain meaning of the words and contradict the interpretation from Steeves v. Oak Bay Marina Ltd., 2008 BCSC 1371 which defined “living accommodation” as a “permanent primary residence”.
[41] The Boire Respondents argue that this Court should not construe “living accommodation” restrictively, because the plain words of the legislation, the legislative purpose in enacting the MHPTA, and the Residential Tenancy Act, S.B.C. 2002 c. 78—which it contends is a statute with a similar subject matter— all suggest that the legislature intended a broad definition of “living accommodation”.
[42] Whether the MHPTA applies in this case depends on whether the respondents’ structures meet the definition of “manufactured home” in s. 1 of the MHPTA which requires, in part, that the structure be “used or intended to be used as living accommodation”.
[43] In Steeves at para. 107, Mr. Justice Bracken construed “living accommodation” in s. 1 of the MHPTA as requiring the manufactured home to be:
[S]omething that is used as a permanent primary residence. To do otherwise could bring the MHPTA into operation in any campground in the Province where an RV is occupying a site. If the owner of the RV chooses to overstay a short fixed term, or refuses to pay rent, then the machinery of the MHPTA would necessarily be brought into play. Surely this cannot have been the intention of the Legislature.
[Emphasis added.]
[44] This interpretation was followed by Mr. Justice Brooke in Lang v. British Columbia (Residential Tenancy Act, Dispute Resolution Officers), 2008 BCSC 1707 at para. 21.
[45] While the Boire Respondents argue that “living accommodation” should be construed broadly, the principles of judicial comity articulated in Re Hansard Spruce Mills Ltd., [1954] 4 D.L.R. 590 (B.C.S.C.) suggest that the interpretation of “living accommodation” in Steeves should be followed in this case.
[46] I turn now to whether the Boire Respondents’ structures are permanent primary residences.
[47] As the petitioner points out, the Boire Respondents have not provided evidence to establish that each of them has used or intends to use their accommodation on Lot 4 as primary permanent residences. Mr. Patterson deposed that he and his wife have “used and enjoyed [the] property on a regular basis” but live in Alberta. Likewise, Mr. Powell deposed that he resides in Calgary. There is no evidence his use of the RV lands is as a primary residence but rather that Mr. Powell and his wife wanted land where they could use their RV. In the final affidavit provided by the Boire Respondents, Mr. Urbanoski deposed that he resides in Alberta and that he entered into a lease because he was “looking for a place where [he] could spend [his] time following [his] retirement.”
[48] None of this evidence suggests that these particular Boire Respondents were using the property as primary permanent residences. The other Boire Respondents have provided no evidence to suggest their use of the RV Lands meets the definition of “living accommodation” from Steeves. Therefore, I find that the MHPTA does not apply.
[49] As a result, the Boire Respondents’ argument that this Court lacks jurisdiction due to s. 9 the MHPTA, and that the petitioner cannot effect eviction because it did not meet the notice requirements set out in the MHPTA, must fail.
[50] Justice Adair concluded in her Reasons that the Lease Agreements are contrary to s. 73 of the Land Title Act, and therefore were void ab initio: at para. 24. She held that the Lease Agreements did not create an in rem right and that the effect of s. 73.1 was that the Lease Agreements could only be enforced in personam against the original lessor, in this case, Marcer.
[51] Therefore, the Boire Respondents do not have any in rem rights that can be enforced against the petitioner.
[52] On the issue of the relevance of Mr. Hockett’s evidence, I agree with the petitioner that it is a collateral attack on the findings made by Adair J. and not relevant to the issues in this case.
[53] In the result, I conclude that the MHPTA does not apply to the Boire Respondents’ structures on Lot 4.
[54] The Boire Respondents nor any other purported lessees or individuals purporting to have any interest in the Lot 4 have rights to or interests in Lot 4.
[55] The Lease Agreements are unenforceable against the petitioner.
[56] The Boire Respondents and the Non-Participating Respondents are ordered to vacate Lot 4, as a consequence of, and to effect compliance with, the RDEK Order.
[57] There will be a stay of the order to vacate against all the respondents for a six month period ending on July 16, 2019. The purpose of the stay is to allow the respondents to remove their recreational vehicles, trailers, or mobile homes (“Structures”) located on the lots.
[58] In order to facilitate the removal of the various respondents’ Structures, the petitioner is directed to restore road access to Lot 4 by April 16, 2019. This requires the removal of the lock on the main access gate, the large dirt berm in front of the main access gate, the barrier on the mid terrace road, and any other barricades that impede access to Lot 4. These barricades are to be removed at the petitioner’s expense.
[59] The petitioner is entitled to their costs against the Boire Respondents on scale B.
“The Honourable Madam Justice Forth”