990713 Alberta Ltd., operating as Airport Motel Plaintiff - v. -, 2013 ABPC 36

In the Provincial Court of Alberta Citation: 990713 Alberta Ltd. (Airport Motel) v. Cook, 2013 ABPC 36 Date: 20130213 Docket: 12-039-00064 Registry: Leduc Between: 990713 Alberta Ltd., operating as Airport Motel Plaintiff - and - Barry Cook Defendant Reasons for Decision of the Honourable Judge L.E. Nemirsky [ 1 ] The plaintiff, 990713 Alberta Ltd., operating as Airport Motel, sues the defendant, Barry Cook, for what it claims are outstanding charges incurred by Mr. Cook for lodging at its motel in Leduc, Alberta.

While the total amount said to be owing is $28,861.64, the plaintiff seeks judgment in the sum of $25,000 (having abandoned the amount exceeding the jurisdictional limit of this court), together with pre-judgment interest and costs. [ 2 ] Witness testimony was heard on July 26, 2012 and on January 16, 2013. Only one exhibit was entered, that being a binder containing a number of documents and other written materials, parcelled under eight separate tabs. References herein to a particular tab number will in each instance be a reference to a tab so numbered in the Exhibit 1 binder.

References to transcript excerpts are all with respect to the July 26, 2012 proceedings. [ 3 ] The background circumstances are somewhat unusual in that the period of time during which Mr. Cook was in occupation of a room at the plaintiff’s motel was a lengthy one; he was there from June 20, 2005 until December 2, 2010, for a total of 1991 days. [ 4 ] When he checked in he was assigned a room at the motel’s trucker’s rate (given to him because he worked in car sales) of $44.39 per night, and he signed a registration card (Tab 3) so indicating.

Ten days later, he approached the motel general manager, Wendelin (“Wendy”) Krikke, advising that he wished to stay long-term. That resulted in his being given a monthly rate of $34.33 per night, retroactive to the commencement of his stay. His registration card was amended to reflect the new room rate, and he was given a credit to adjust the daily room billing for the first 10 days.

[ 5 ] It was made clear to Mr. Cook that he was being given the monthly rate conditional upon him paying his daily room charge each month in advance, and further, upon his paying a $100 damage deposit. Neither of these conditions was ever complied with. [ 6 ] The room rate that was charged included two parking stalls, cable television, all utilities, free local telephone calls and housekeeping service. As to the room cleaning component of the housekeeping service, Ms. Krikke explained that there came a time when, because of the quantity of boxes and things that Mr.

Cook had accumulated, the housekeeping staff could no longer do the room vacuuming. But it was her testimony that at all times, even after the room had become cluttered, the staff would do his bedding and clean his bathroom. As to the frequency of the housekeeping service, she testified it was provided daily when he was on a daily rate, and weekly when he was on a monthly rate. [ 7 ] The motel’s computer system created a folio (Tab 2) that showed the room rate charged for each night of a guest’s stay. It also showed all payments that had been made.

Because a folio generated at a particular point of time reflected all the room charges that had been incurred, and all payment credits, from the commencement of the stay, the state of a guest’s account was at all times calculable upon perusal of the folio. [ 8 ] Although the folio for the entirety of his stay shows Mr. Cook’s room number as 124 (which room he did occupy from April 16, 2007 until his departure) he had prior to that been in room 123.

When she was questioned as to why it was that room 124 was shown throughout on the folio, I understood the explanation for this of Jashuben Patel, one of the motel’s owners, to be that the folio system was set up in such a manner that the room number of the room occupied by the customer at the time the folio was printed would appear on all pages of the folio. Since in Mr. Cook’s case, he had been in room 124 at the time of his departure, that meant that all pages of the folio printed at that time showed his room number as 124. [ 9 ] During the course of Mr.

Cook’s lengthy stay, the motel implemented a number of room rate changes. As shown in the Room Rental

Summary (Tab 1), in addition to the aforementioned retroactive rate change effected shortly after his arrival, the plaintiff’s nightly rate in respect of the rooms from time-to-time occupied by him changed on December 5, 2005; on April 17, May 24, July 1, November 15 and November 17, all in 2006; on October 11, 2007; and on November 17, November 18 and December 19, all in 2008. What is very much in issue is whether Mr. Cook was given notice of the rate changes.

His testimony was that, with the exception only of his having been told on May 24, 2006 that effective that date his nightly room rate was changed from the monthly rate to the trucker’s rate, he had not received such notice. [ 10 ] On the question of what notice Mr. Cook was given of his room rate changes, Ms. Krikke testified that, several days after he had checked in, she told him that he would be charged on a monthly rate basis of $34.33 per night, backdated to when he commenced his stay at the motel.

She also told him on May 24, 2006 that, because of his being behind in his payments, he was no longer eligible for the monthly room rate, and would effective that date be charged $56.67, being the nightly trucker’s rate. As well, both Ms. Krikke and Ms. Patel testified that a member of the motel staff would have taped a copy of the March 1, 2006 letter in Tab 8 to the television set in Mr.

Cook’s room, advising him that effective July 1, 2006 the nightly rate for his room would be $65.45, but that he “may continue to be eligible for an applicable discount” (and the folio shows that he did, in fact, receive a discounted rate of $55.45 per night plus tax). [ 11 ] In addition to these specific notifications of room rate changes, it was their testimony that copies of his folio were left in Mr. Cook’s room on a regular basis, the frequency of which was not less than monthly.

As well, they explained that the applicable motel rates were at all times posted at the motel premises. [ 12 ] Included in Tab 4 are a series of notes from motel staff, primarily Ms. Krikke, to Mr. Cook, requesting that he bring his account into good standing. According to Ms. Patel these notes were left in Mr. Cook’s room, in each case with a copy of the folio attached, taped to the television set. She explained that delivery of these materials was effected in this manner because Mr. Cook was usually at work, and not in his room. Two of the notes had responses on them from Mr.

Cook that he would pay at the end of the month. In a separate note to “Wendy” he stated he would have “more for you at the month’s end when I get my year end pay cheque.” In another such note to Wendy, he said he had to go to B.C. for a week regarding a family matter, and added “I will have money when I return for you.” [ 13 ] For his part, Mr. Cook was asked, at the July 26, 2012 segment of the trial, whether the letters left in his room by the motel staff came to him with a copy of the folio. He answered (transcript, p. 97, ll. 35-37):

No, not with a copy. Very seldom was there a copy of the bill, I would just get these in my room. Once in a while, and I would hesitate to even suggest every six months there might be a copy of the bill, but not on a routine regular basis. [ 14 ] At the trial continuation held on January 16, 2013, in his cross-examination Mr. Cook was asked whether he regularly received a copy of the folio. His response then was that he only received a copy when he asked for it, which was probably every few months.

As to why he would ask for a copy of the folio, he said it was for the purpose only of seeing that his payments had been recorded. [ 15 ] Tab 7 is the letter dated November 11, 2010 from the motel to Mr. Cook requiring him to pay the balance owing in full, and to vacate his room by November 15, 2010. At the bottom of that letter is Mr. Cook’s reply, asking that he be given until December 1 st to vacate, and to make arrangements for payment. [ 16 ] On December 2 nd Mr. Cook did vacate his room.

At that time he was asked to sign a document (Tab 5) acknowledging that he owed the motel $30,263.17, that he would make monthly payments thereon in the sum of $1,000 and that he would pay costs incurred by the plaintiff in the event collection steps were undertaken. Before signing it, he asked for and was given a copy of the folio. As well, and also prior to his signing the document, he placed a question mark beside the amount owing figure because, as he explained in his testimony, he was not certain as to the actual amount of the arrears.

As well, and at his request, the payment provision was changed so that he would be required to make monthly payments of $500 rather than $1,000. [ 17 ] In addressing the question of the amount of arrears at the time Mr. Cook departed the motel, defence counsel Mr. Klause, in his cross-examination of Ms. Krikke, asked her whether the correct arrears amount was as stated in the Tab 5 document or whether it was as calculated using the folio entries. She replied that the folio calculation would be the correct one. Referring to the Tab 1 Room Rental

Summary, being a folio

summary of the room charges and the payments made thereon by Mr. Cook, her evidence was that the arrears amount was $30,258.10 (that being the “Net Payable” figure as shown on page 3 of the Room Rental

Summary). In this regard, Mr. Omkar, counsel for the plaintiff, pointed out that because of “mathematical calculation error” the “Net Payable” in the Tab 1

summary is incorrectly stated. He explained that the Net Payable, being the difference between the total of the room charges ($106,862.88) and the total payments made by Mr. Cook up to the time of his departure ($76,601.24) should correctly have been shown as $30,261.64, and not $30,258.10. I took from all of this that the sum of $30,261.64, rather than the $30,263.17 figure that was in fact used ought to have been inserted as the Net Payable in the Tab 5 document. [ 18 ] The parties are in agreement that as is shown in the Tab 1

summary, Mr. Cook had paid the plaintiff $76,601.24 up to the time he left the motel, as well as the further sum of $1,400 subsequent to his departure, for a total paid to date amount of $78,001.24. The parties do not, however, agree on the cumulative amount chargeable to Mr. Cook for the entirety of his 1,991 day stay. [ 19 ] The plaintiff’s position is that Mr. Cook should in total have paid $106,862.88, as per the Tab 1

summary, leaving the sum of $28,861.64 still outstanding. [ 20 ] Mr. Klause, for the defendant, takes the position, firstly, that his client should have been charged at the rate of $15 per night for each of the 1,991 days he occupied a room at the motel, in which case not only would there be no monies owing to the plaintiff, but the plaintiff would have been greatly overpaid. His second argument is that in any event a residential tenancy had here been created, so that the provisions of the Residential Tenancies Act , SA 2004, c.

R-17.1 ( RTA ) as to rent increases, and notice requirements in respect thereof, must be complied with in calculating the total amount payable by Mr. Cook. [ 21 ] Given the trial evidence, I find no merit in the first of the defence arguments, that is, that Mr. Cook should have been charged at the rate of $15 per night. [ 22 ] Mr. Cook’s explanation as to why he felt $15 per night was the rate at which he would be charged is contained in the following excerpt from his cross-examination (transcript, p. 97, l. 39 to p. 99, l. 28): Q Okay.

Now when you did get these bills or folios did you ever look at them and question why you are having to pay more than

$15 a night? A I did question in my own mind, but again was told that for bookkeeping reasons it needed to be this way and at the end of my termination it would be readjusted and that was in the original conversation, so - Q Let’s go back to that conversation, sir. Who did you have that conversation with? A With Wendy. Q When would this be? A It would have been when they went from a monthly basis to a daily basis and - Q And you were aware when they were going from a monthly to a daily basis, right? A Pardon. Q You were aware when it was changing - A Yes.

Q -- from a monthly basis - A Yes, I - I can’t give you the exact - remember the exact date or but I can remember the conversation. Q You mentioned you looked at the

summary which is at Tab 1 and now you’re fairly comfortable with those numbers, is that correct, sir? A Pardon. Q The

summary at Tab 1? A Yes, I am comfortable - Q Yeah. A -- with that. Q So according to that you were changed from a monthly rate to a daily rate on 24 th of May, 2006? A Okay. Q So that’s when you suggest that conversation would have been had? A Yes. Q So about that Wendy told you we’ll continue to charge you - or we will charge you $15, but it’ll be $55 or $56 that’ll show up on your folio? A No, be just the regular daily rate not mentioned amount. Q Okay, so you were told it would be the regular daily rate though?

A That’s right. Q Okay. You did not ask for any of that in writing from her? A No. Q So until 2010 you were under the impression that you were paying $15 a night, is that correct? A It would be corrected to that after I moved out is what under - my understanding of the conversation was. Q So your evidence today then, sir, is that you were told that when you finally checked out what you would eventually be charged is $15 a night. A That’s right. Q Mr.

Cook, if I suggest to you that you stayed in the motel roughly 2,000 nights and if I suggest to you that multiplied by 15 that works out to $30,000 would that be about the number you think is right? A If your calculations are right, yes, sir. Q And you indicated, in our examination by my friend, that you’ve paid $76,000 to date. You agreed that that’s the amount you’ve paid, right? A That’s right. Q And you further agreed to pay more amount, right, when you left? A Yes. Q And you, in fact, made several payments after you left, correct?

A Yes. [ 23 ] He was questioned further on his contention that he should only have been charged $15 per night (transcript, p. 103, l. 36 to p. 104, l. 6): Q So when you were asked to leave and you were told the reason you were being asked to leave is because you’re behind on your payments? A That’s right. Q Did you find out how much you were behind at the time? A Said approximately that amount. Q And you work with numbers every day you said, right, in your car sales? A Yes. Q And you did not figure out that you should only have paid $30,000 in the five years.

A I didn’t. And further (transcript, p. 110, ll. 23-32): Q So when you signed that document, that is Tab 5, you didn’t see an adjustment in the folio at the time, did you? A No. Q And you didn’t question about it, where you were supposed to give me an adjustment, why haven’t you? A I just wanted to -- Q You did not question it, right? A No, the reason I didn’t question it I just wanted to get out of there. [ 24 ] In her cross-examination, Ms. Krikke (being the “Wendy” referred to by Mr. Cook in the first of the above-quoted transcript excerpts) denied ever having discussed a $15 rate with him.

Nor was she aware of him having had such a discussion with someone else on her staff. Ms. Patel was also asked and she as well denied ever having had such a discussion or ever having offered Mr. Cook a reduced room rate of $15 per night. [ 25 ] Witness credibility obviously looms large in this matter. In that regard, I found Mr. Cook’s testimony relating to his contention that he’d been told that despite his folio showing appreciably higher room rates, he would only be charged $15 for each and every night of his stay, to be less than believable. On the other hand my assessment of the testimony given by Ms.

Krikke and Ms. Patel was that they were both being truthful and honest, and that they each related to the best of their recall what had taken place. I accept their testimony, and I am satisfied that Mr Cook was not offered, nor was there any agreement that he would be charged, a nightly rate of $15. [ 26 ] That leaves the second defence argument, that is, the defence contention that the RTA applied in respect of Mr. Cook’s stay at the motel, so that rent increases could only be effected if there were strict compliance with its provisions. [ 27 ] In advancing this argument, Mr. Klause relies on ss. 2(1) and 2(2) (

d) of the RTA , which provide 2(1) Subject to subsection (2), this Act applies only to tenancies of residential premises. 2(2) This Act does not apply to . . . . (

d) a hotel, motel, motor hotel, resort, lodge or tourist camp, a cottage or cabin located in a campground, or a trailer park, tourist home, bed and breakfast establishment or farm vacation home, if a person resides there for less than 6 consecutive months, [ 28 ] His position is that the effect of s. 2(2) (

d) is that since Mr. Cook had resided at the plaintiff’s motel for more than six consecutive months, that fact, in and of itself, evidenced the creation of a residential tenancy, thereby invoking the provisions of the RTA . [ 29 ] On the other hand, Mr. Omkar argues that Mr. Cook occupied a room in the premises under a license, and that there was here no tenancy, so that the RTA has no applicability.

[30] In my view, in order that the RTA apply, more has to be established than the mere fact of there having been at least sixconsecutive months of residency. The facts would as well have to be supportive of a lease having been entered into, and that could onlybe the case if the occupant of the premises in question can be shown to have had exclusive possession. In Klewchuk v. Switzer, 2003ABCA 187 , [2003] 11 W.W.R. 284 (leave to appeal to the Supreme Court of Canada dismissed [2003] S.C.C.A.No. 392) theAlberta Court of Appeal stated: 41 The hallmark of a lease is the granting of exclusive possession: Street v.

Mountford, [1985] 2 All E.R. 289 (H.L.). A licence, onthe other hand, does not create an interest in the property to which it relates. Rather, it conveys a privilege to use the property: Baker andBaker v. Gee, (AB CA), [1945] 3 W.W.R. 555 (Alta. S.C.A.D.). and further: 44 Switzer claims that Klewchuk’s use of the word “rent” on several occasions to describe his payments for use of the facilitysuggests the existence of a tenancy.

But the use by the parties of one word over another to label the relationship does not affect its legalcharacterization: The result of all these cases is that, although a person who is let into exclusive possession is, prima facie, to be considered to be a tenant,nevertheless he will not be held to be so if the circumstances negative any intention to create a tenancy. Words alone may not suffice.Parties cannot turn a tenancy into a licence merely by calling it one.

But if the circumstances and the conduct of the parties show that allthat was intended was that the occupier should be granted a personal privilege with no interest in the land, he will be held only to be alicensee. Errington v.

Errington, [1952] 1 All E.R. 149 at 155 (C.A.) [31] The Court of Appeal found that Klewchuk did not have exclusive possession of the casino property there involved becauseSwitzer had retained the right to conduct some retail activity within the casino, so that the relationship between the parties was that oflicensee/licensor. [32] The case authorities relied upon by the defence do not, on my reading of them, impinge on the legal principles set out inKlewchuk. [33] In Baker and Baker v.

Gee, (AB CA), [1945] 3 W.W.R. 555, while the Court found that despite there nothaving been exclusive possession a landlord and tenant relationship had been created, it did so because of the enlarged definition of alease in Order 294 of the Wartime Rental Regulations “so as to include within its scope a situation which would not ordinarily constitutethe relationship of landlord and tenant.” Because the Court based its decision on the specific provision in the Order, the case wouldappear to have no applicability to the matter before me, where there was no such unique provision. [34] In Caissie v.

Inn on the Creek, 2003 CarswellOnt 1555, the Ontario Rental Housing Tribunal at least in part appears to havebased its finding that a tenancy did exist on the fact that the unit in question had been advertised as an apartment for rent. There was nosuch holding out in the matter before me.

The decision is distinguishable on its facts. [35] The decision of the Ontario Superior Court of Justice in Jeffrey and Masek, 2006 CarswellOnt 8804, is of limited, if any,assistance, in that there a finding that a landlord and tenant relationship did exist was founded on provisions in the Ontario legislation thatdiffered somewhat from the RTA provisions. [36] The Alberta Provincial Court decision in R. v. Lowry, 2006 ABPC 209 is a criminal case where a finding of guilt could onlyhave been made if the provisions of the Innkeepers Act, rather than the RTA, applied.

If, as would appear to be the case, the finding of

the Court was that the RTA did apply, and that the accused was a tenant of the hotel by reason only of his having resided there for more than six consecutive months, I, with respect, am unable to agree that a residential tenancy would have been created due to such passage of time alone. In my view exclusive possession would as well have to have been established, in accord with the rationale in Klewchuk . [ 37 ] Section 2(2)(

d) rules out the applicability of the RTA if the period of continuous residency in any of the listed types of establishments (one being a motel) is less than six months. The wording used does not, however, say that the RTA shall apply in all instances where there has been at least six months of continuous residency. In my view, there having been such a period of continuous residency only leaves open the possibility that the RTA does apply.

But for that possibility to become reality, it would also have to be shown that the occupant had exclusive possession of the premises. [ 38 ] The evidence here is clear as to the duration of continuous residency precondition having been met. The further question is whether the evidence shows Mr. Cook to have been in exclusive possession. [ 39 ] In my view the trial evidence is not indicative of Mr. Cook having had exclusive possession. I so conclude for several reasons: 1.

When he was asked whether he understood that he was free to walk away with his belongings at any time, he replied “Yes”. (transcript, p. 101, ll. 32-34). That, to me, is indicative of a relationship other than one of lessee/lessor. 2. Mr. Cook did not occupy the same room for the duration of his stay. He was initially assigned room 123, and was later moved to room 124. 3. Most importantly, it was a term of Mr. Cook’s stay at the motel that he be provided housekeeping services.

The evidence showed that the motel staff did access his room regularly - at times daily, and at other times weekly - to provide such services. [ 40 ] Having regard to all of the above factors I am satisfied that Mr. Cook did not have exclusive possession of the room(

s) he occupied at the plaintiff’s motel. No tenancy was created. His occupation was by way of license only, with the RTA having no applicability. [ 41 ] The evidence of the plaintiff’s witnesses, which I found to be credible and reliable, that copies of Mr. Cook’s folio were regularly left for him in his room, coupled with the fact that the room rates charged by the motel were at all times posted at its premises, satisfies me that Mr. Cook was duly given notice of the changes to his room rate that were from time-to-time effected.

I am further satisfied that by reason of his at no time having expressed any objection to or disagreement with any of the changes, he acquiesced in and is bound by all of the rate changes. [ 42 ] In conclusion, the plaintiff has, on a balance of probabilities, established that the defendant, Barry Cook, is indebted to it in the sum of $28,861.64.

The plaintiff, having abandoned that portion if its claim exceeding the jurisdictional limit of this Court, will accordingly have judgment against the defendant in the sum of $25,000.00, together with interest thereon under the Judgment Interest Act calculated from February 7, 2012 (the date of the Civil Claim). [ 43 ] In addition, the plaintiff will have costs in the sum of $4,500.00, inclusive of disbursements. [ 44 ] I would only add that if I am in error in concluding that the RTA does not here apply, I would have found that the Tab 8 letter to Mr.

Cook constituted a proper notice under the RTA of a rent increase effective July 1, 2006 (with all of the other rent increases being non-compliant). I would in that event have found the rent payable by him to be $34.33 per night for the period June 20, 2005 to June 30, 2006 and $55.45 per night for the period July 1, 2006 to December 1, 2010 (given that the evidence showed that after the applicable discount was afforded Mr. Cook, his rent was increased to $55.45 effective July 1, 2006).

Heard on the 26 th day of July, 2012 and on the 16 th day of January, 2013. Dated at the City of Leduc, in the Province of Alberta, this 13 th day of February, 2013. L.E. Nemirsky A Judge of the Provincial Court of Alberta Appearances: Atul Omkar, for the Plaintiff Michael .D. Klause, Q.C., for the Defendant