Killam Properties Inc. v. Patriquin, 2013 NSSC 171

SUPREME COURT OF NOVA SCOTIA Citation: Killam Properties Inc. v. Patriquin, 2013 NSSC 171 Date: 20130604 Docket: Hfx 376679 Registry: Halifax Between: Killiam Properties Inc. Appellant v. Mark Patriquin Respondent Judge: The Honourable Justice Patrick J. Duncan Heard: November 13, 2012, in Halifax, Nova Scotia Counsel: Lloyd R. Robbins, for the appellant I. Claire McNeil, for the respondent Jennifer Huygen, Student at Law for the respondent By the Court : Introduction [ 1 ] The appellant, Killam Properties Inc. (Killam), owns land in Amherst, Nova Scotia upon which a mobile home park is situated.

The land is subdivided into lots which are rented to persons who place their own mobile home on an individual lot. The respondent, Mark Patriquin is a tenant in the Park. The parties disagree on who, as between landlord and tenant has the obligation to maintain the driveway on his lot.

[ 2 ] The Director of Residential Tenancies and an Adjudicator of the Small Claims Court have both ruled in favour of Mr. Patriquin's position and held that the obligation falls on the landlord. That determination is the subject of this appeal. Killam has filed a Notice of Appeal. The Respondent has filed a Notice of Contention. Background [ 3 ] The respondent has been a tenant in the park since 1994. The landlord at that time paved and maintained driveways on the mobile home lots. Killam acquired ownership of the Park in 2004.

It continued to maintain the driveways until the end of 2009. [ 4 ] Killam had, on May 29, 2009 served the Park tenants with a " Notice of Rent Increase - Mobile Home Park Space " in Form C, as appended to the Regulations made pursuant to the Residential Tenancies Act . R.S., c. 401( RTA ) .

That Form asks the question: " Any change in Services ?" To this question the Notice stipulated that effective January 1, 2010 the " Landlord will no longer maintain driveways and walkways ." There was no increase in the actual rent, but the Notice does stipulate that " Discontinuing a service is a rent increase and may be reviewed ." [ 5 ] Over 14 months after receiving the landlord's Notice of the intention to withdraw from maintenance of the driveway and walkway, the respondent filed an " Application to Director " in Form D, as appended to the Regulations made pursuant to the Residential Tenancies Act .

That is a generic form that may be used to initiate various types of proceedings under the Act. Mr. Patriquin checked off the box that stated: Review of Notice of Rent Increase and determination of appropriate rent increase (APPLIES TO MOBILE HOME PARKS ONLY). [ 6 ] In the next section, titled "DETAILS OF CLAIM", he submitted: The landlord issued a Notice of Rent Increase in May 2009 stating that the landlord would no longer maintain driveways and walkways at the mobile home park in Amherst.

The tenant claims the paving of driveways and walkways is not a service under section 9(1) 2 of the RTA and therefore the landlord is not entitled to discontinue paving. In fact, maintenance of the driveways and walkways is necessary for the landlord to fulfill its obligation under the Act to keep the premises in a good state of repair under s. 9(1)1 as driveways and walkways are fixtures on the mobile home space, meaning that they fall within the definition of "residential premises" in s. 2(

h) of the Act. [ 7 ] A hearing of this Application was convened by the Director and on November 10, 2010 an Order of the Director was issued that concluded: It is the obligation of the landlord to maintain the driveways and walkways of the tenants in Manufactured Home Communities as per Section 9(1) 1 of the Residential Tenancies Act . [ 8 ] On November 26, 2010 Killam filed a Notice of Appeal, in the Small Claims Court, from the Order of the Director of Residential Tenancies It set out two grounds: 1.

The Residential Tenancy Officer erred in allowing the complaint which in fact was a review of a rental increase, which was out of time, to proceed under section 13(4) of the Residential Tenancies Act ;

2. The Residential Tenancy Officer erred in determining that walkways and driveways are part of the premises that the landlord is obligated to maintain in accordance with section 9(1)1 of the Residential Tenancies Act . [ 9 ] Hearings in the Small Claims Court concluded in December 2011 and Adjudicator David T.R. Parker dismissed Killam's appeal in a decision dated January 3, 2012. That decision is the subject of this appeal. The Adjudicator's

Summary Report of Findings was filed in this court on April 5, 2012. Decision of the Director of Residential Tenancies [ 10 ] The Director acknowledged the landlord's argument that the tenant did not have standing to file a Notice of Review of the rent increase because under

section 11A (4) of the Residential Tenancies Act the time for such a review had expired. In response, the Director held that the hearing would proceed under section 13 (1) (

a) of the RTA "to determine the question arising under this Act". [ 11 ] The decision framed the issue as " … whether or not tenant driveways and walkways are a maintenance issue or are they considered a service ." [ 12 ] The Director concluded that: … the tenants' driveways and walkways are intrinsic to their premises. It is my opinion that maintenance of premises has been and will continue to be the responsibility of the landlord.

Based on the foregoing, the landlord is obligated to maintain driveways and walkways of tenants in Manufactured Home Communities as per section 9 (1) 1 of the Residential Tenancies Act . [ 13 ] Section 9(1) is a list of the Statutory Conditions deemed to bind the landlord and tenant. The Condition relied upon by the Director is: 1. Condition of Premises - The landlord shall keep the premises in a good state of repair and fit for habitation during the tenancy and shall comply with any statutory enactment or law respecting standards of health, safety or housing.

The Adjudicator's Decision [ 14 ] Although the Director's Order spoke of "driveways and walkways of the tenants", the Adjudicator concluded that the focus of the issue for Mr. Patriquin was on "driveways". [ 15 ] At page 9 of the Adjudicator's decision dated April 7, 2011, he frames the issue before him in the following terms: A determination has to be made whether maintaining driveways and walkways is a service, privilege, accommodation or thing which the landlord provides or is it a condition of the premises which the landlord is required to keep in a good state of repair and fit for habitation.

That basic question still has to be answered. If this court on hearing the evidence determines that the maintaining of the driveways and walkways in the mobile home park is a service then the Landlord has every right to invoke section 11 (5) of the RTA . [ 16 ] Section 11(5) deems the withdrawal of a "service" by the landlord, to be an increase in rent. Implicitly the decision of the Adjudicator concluded that the Director was correct in deciding the issue of "service" or "condition" as a preliminary matter before

deciding whether the respondent had missed a limitation period when filing his complaint. [ 17 ] The Adjudicator concluded that maintenance of the driveway was not a "service" having regard to the following: 1) the mobile home provisions in the Residential Tenancy Act; 2) the bylaws of the town of Amherst; 3) the appellant's Director of Property Management stating that the "driveways and walkways are common areas" and maintenance is captured by the bylaws; 4) that the tenant was to keep the driveway in good condition, but the owner of the property is required to keep the driveways in a good state of repair; 5) that maintenance of the driveway is a capital cost which may well result in a rental increase. [ 18 ] The Adjudicator's decision varied in one material respect from that of the Director.

The Adjudicator limited the application of his decision to the tenancy relationship as between Killam and Mr. Patriquin. It was not to be applied more broadly since, in the opinion of the Adjudicator, the facts of each tenant's case may be different and warrant a different result. Grounds of Appeal [ 19 ] The appellant has grouped its Grounds 1 through 4 as focused on whether the Adjudicator acted in excess of jurisdiction by: 1. Adjudicating what the appellant says was "an out of time [rent] review application"; 2. Reframing the respondent's initial Application to the Director as one under

section 13 of the RTA instead of

section 11 of the RTA; 3. Confirming the Director's Decision to make an order that the appellant characterizes as "Pure Declaratory Relief"; 4.

Confirming the exercise of discretion to order pure Declaratory Relief in this case, when it was improper to do so. [ 20 ] Ground 5 has been abandoned. [ 21 ] Grounds 6 through 12 allege a variety of errors in law which incorrectly resulted in the Adjudicator concluding that the question of maintenance of driveways and walkways is determined by section 9(1) 1 RTA instead of sections 9(1) 2, 4 and 5 RTA. [ 22 ] The Notice of Contention filed by the Respondent does not seek to challenge any findings of the Adjudicator but simply asserts the correctness of the Decision.

The points made are incorporated into the discussion responding to the Appellant's submissions.

Standard of Review [23] The statutory basis for this appeal is found in

Section 17E of the Residential Tenancies Act: Appeal to Court 17E

(1) Subject to subsection (2), a party to an appeal to the Small Claims Court pursuant to this Act may, if that person took

part in thehearing, appeal the order of the Small Claims Court to the Supreme Court of Nova Scotia in the manner set out in the Small Claims CourtAct.

(2) An appeal pursuant to subsection (1) may only be taken on the ground of (

a) jurisdictional error; (

b) error of law; or (

c) failure to follow the requirements of natural justice. [24] The appellant has advanced arguments alleging the existence of all three grounds. For that reason I will set out some generallegal principles that a court must apply when considering these grounds. Error of Law [25] Saunders J. (as he then was), writing in Brett Motors Leasing Ltd. v. Welsford (NS SC), 1999 NSJ 466(S.C.) considered the scope of what constitutes an "error of law": 14 One should bear in mind that the jurisdiction of this Court is confined to questions of law which must rest upon findings of fact asfound by the adjudicator.

I do not have the authority to go outside the facts as found by the adjudicator and determine from the evidencemy own findings of fact. "Error of law" is not defined but precedent offers useful guidance as to where a superior court will intervene toredress reversible error.

Examples would include where a statute has been misinterpreted; or when a party has been denied the benefit ofstatutory provisions under legislation pertaining to the case; or where there has been a clear error on the part of the adjudicator in theinterpretation of documents or other evidence; or where the adjudicator has failed to appreciate a valid legal defence; or where there is noevidence to support the conclusions reached; or where the adjudicator has clearly misapplied the evidence in material respects therebyproducing an unjust result; or where the adjudicator has failed to apply the appropriate legal principles to the proven facts.

In suchinstances this Court has intervened either to overturn the decision or to impose some other remedy, such as remitting the case for furtherconsideration. [26] The Supreme Court of Canada distinguished questions of law, of fact and of mixed fact and law in the following terms, as setout by Iaccobucci J. in Canada (Director of Investigation Branch and Research) v. Southam Inc. (SCC), [1997] 1S.C.R. 748: 35 ...

Briefly stated, questions of law are questions about what the correct legal test is; questions of fact are questions about what actuallytook place between the parties; and questions of mixed law and fact are questions about whether the facts satisfy the legal tests. Asimple example will illustrate these concepts. In the law of tort, the question what "negligence" means is a question of law. Thequestion whether the defendant did this or that is a question of fact. And, once it has been decided that the applicable standard is one of

negligence, the question whether the defendant satisfied the appropriate standard of care is a question of mixed law and fact. I recognize,however, that the distinction between law on the one hand and mixed law and fact on the other is difficult. On occasion, what appears tobe mixed law and fact turns out to be law, or vice versa. [27] Determinations of credibility and the weight to attach to the evidence are not questions of law. The Nova Scotia Court ofAppeal, in McNaughton v.

Ward 2007 NSCA 8, held: 34 While the appellant casts all of the grounds of appeal as errors "in law," the first three are, with respect, conclusions that derivefrom the trial judge's factual findings, assessment of the witnesses, and evaluation of the evidence. These are functions well within thejurisdiction of the trial judge, who enjoys a significant advantage in seeing and hearing the witnesses first hand. Such determinationsdraw a high degree of deference and will not be disturbed on appeal absent palpable and overriding error. As directed in such cases asHousen, supra, and H.L. v.

Canada (Attorney General), 2005 SCC 25, "palpable" refers to a mistake that is clear, in other words, plain tosee; whereas "overriding" is an error that is shown to have affected the result. Both elements must be demonstrated. We, sitting as anappellate court, will not interfere with a trial judge's findings of fact unless we can plainly discern the imputed error, and the mistake issuch that it discredits the result. [28] That findings of fact are accorded a high degree of deference was previously addressed in Davison et al v.

Nova ScotiaGovernment Employees Union 2005 NSCA 51: 61 Findings of fact will not be reversed on appeal unless the trial judge made a palpable and overriding error. The same degree ofdeference is paid to inferences drawn from the evidence and to all of the trial judge's findings whether or not they are based on findingsof credibility: Housen v.

Nikolaisen, 2002 SCC 33 , [2002] 2 S.C.R. 235, per Iacobucci and Major, JJ. at paras. 10 and 23 to 25. 62 The "palpable and overriding error" standard underlines that a high degree of deference is paid on appeal to findings of fact at trial.An error is palpable if it is one that is plainly seen or clear. An error is overriding if, in the context of the whole case, it is so serious asto be determinative in the assessment of the balance of probabilities with respect to that factual issue: see Housen v. Nikolaisen, supra, atparas. 1 to 5 and Delgamuukw v.

British Columbia, (SCC), [1997] 3 S.C.R. 1010 at paras. 78 and 80. Thus, not everymisapprehension of the evidence or every error of fact by the trial judge justifies appellate intervention. The error must not only be clear,but "overriding and determinative." [29] In this case, the Adjudicator did hear evidence, and made findings of fact that are owed deference. [30] It is against this legal and practical background that an appeal of an adjudicator's decision is determined. Natural Justice [31]

Section 2 of the Small Claims Court Act sets out the purpose of that legislation in the following words: 2 It is the intent and purpose of this Act to constitute a court wherein claims up to but not exceeding the monetary jurisdiction of thecourt are adjudicated informally and inexpensively but in accordance with established principles of law and natural justice. Analysis Grounds 1-4: Jurisdiction [32] The appellant submits that the respondent's originating complaint framed the issue as one of a rent review which ought to havebeen dismissed as out of time. The appellant says that the Adjudicator erred in concluding that the Director had jurisdiction to deal withthe issue under

section 13 of the RTA.

[ 33 ] The Director determined that the question of whether the maintenance of a driveway is a "service" and so addressed by section 9(1) 2 of the RTA , or a "condition of premises" as set out in section 9(1) 1 of the RTA , was a necessary preliminary question that had to be determined before considering the appellant's argument. If this was a "service", then the appellant's argument was correct and the matter would be dismissed.

If it was a "condition" then the landlord could not discontinue the maintenance and had no legal basis upon which to issue the Notice of Rent Increase. [ 34 ] So the question is whether the Director erred in law, or acted in excess of jurisdiction by treating the initial application of Mr. Patriquin under section 13 (1)(

a) of the RTA "to determine a question arising under this Act". [ 35 ] The regulation of the landlord and tenant relationship is one founded in statute. The authority of the Director is circumscribed by the provisions of the RTA . There is no authority in adjudicative bodies to waver from strict compliance with the provisions of the legislation.

Section 13 states: 13

(1) Where a person applies to the Director (

a) to determine a question arising under this Act; or (

b) alleging a breach of a lease or a contravention of this Act, and, not more than one year after the termination of the lease, files with the Director an application in the form prescribed by regulation, together with the fee prescribed by regulation, the Director is the exclusive authority, at first instance, to investigate and endeavour to mediate a settlement. [ 36 ]

Section 16 of the RTA requires an attempt at mediation of the dispute arising under

section 13, and if that fails then the Director is required by

section 17 to fashion a remedy to the question posed. That

section says: 17

(1) Where, after investigating the matter, the Director determines that the parties are unlikely to settle the matter by mediation, the Director shall, within fourteen days, make an order in accordance with

Section 17A.

(2) The Director is not disqualified from making an order respecting a matter by reason of having investigated or endeavoured to mediate the matter. 1997, c. 7, s. 7. Contents of order 17A An order made by the Director may (

a) require a landlord or tenant to comply with a lease or an obligation pursuant to this Act; (

b) require a landlord or tenant not to again breach a lease or an obligation pursuant to this Act; (

c) require the landlord or tenant to make any repair or take any action to remedy a breach, and require the landlord or tenant to pay any reasonable expenses associated with the repair or action. [ 37 ] The following is the substantive part of Form D that Mr. Patriquin was to complete:

THIS IS AN APPLICATION FOR [ ] Disposition of a security deposit; [ ] Termination of tenancy; [ ] Repairs; [ ] Payment of money; [ ] Payment of rent in trust; [ ] Any action by landlord or tenant; [ ] Compliance with a lease; [ ] Review of notice of rent increase and determination of appropriate rent increase; (APPLIES TO MOBILE HOME PARKSONLY) DETAILS OF CLAIM: _______________________________________________ _____________________________________________________________________ [38] While the first part of the respondent's Form D flagged the question to the Director as one of a rent review, the "Details ofClaim" in the respondent's Application clearly challenges the assertion that this was a service capable of being withdrawn.

As such, therespondent's Form D laid out the substantive issue as a question arising under the Act, specifically the proper application of

section 9 tothis landlord and tenant relationship. [39] It would also, perhaps even more appropriately, have been a question of whether the landlord was acting in "Compliance with aLease". i.e., Was the landlord failing to comply with a statutory condition to provide maintenance to the driveways and walkways? [40] The appellant's argument cannot succeed as it is underpinned by the basic assumption that in checking the "rent review" box,Mr. Patriquin was confined to that issue, even though the "Details of Claim" made it clear that the issue was actually a question of thelegal

interpretation of the lease terms and whether the landlord's conduct left it in compliance with the lease or not. [41] Bateman JCC (as she then was) had this to say in Birkdale Realties v Walker (1991) (NS SC), 109 N.S.R.(2d) 216 (N.S.Co.Ct): It is my understanding that one of the purposes of the Residential Tenancies Board is to attempt to somewhat informally resolve disputesbetween landlord and tenant. Quite commonly neither party is represented, as was the case here.

It would hardly be in the public interestto have a hearing, make a finding, and then deny a recommendation on the basis that one of the parties has not filled in the right box onthe form. That is certainly contrary to the spirit of the process. [42] I agree with this perspective.

Section 2 of the Small Claims Court Act sets out the purpose of that legislation in the followingwords: 2 It is the intent and purpose of this Act to constitute a court wherein claims up to but not exceeding the monetary jurisdiction of thecourt are adjudicated informally and inexpensively but in accordance with established principles of law and natural justice. [43] The RTA espouses the same objective: 1A The purpose of this Act is to provide landlords and tenants with an efficient and cost-effective means for settling disputes. [44] By incorporating the same grounds of appeal in the RTA as set out in

section 32 of the Small Claims Court Act, this purposeis similarly measured in accordance with established principles of law and natural justice.

[45] Writing in Whalen et al. v. Towle 2003 NSSC 259 MacDonald A.C.J. (as he then was) addressed the compromise that theSmall Claims Court Act creates between function and legal rigor. In my view it is equally applicable where the Small Claims Court issitting on appeal under the RTA: [5] This Act therefore represents a compromise in the area of civil justice in this Province. It provides for a less expensive, less formaland more efficient process for claims that involve relatively small amounts of money. For example, most of the expensive pre-trialsafeguards are abandoned in the interest of efficiency.

There is no formalized regime for the exchange of documents, no discoveryprocess (either written or oral), no pre-trial conferences, nor mandatory pre-trial submissions. ... [8] Therefore, the Small Claims Court regime represents a less than perfect regime, but it is a fundamentally fair one. Whether in thecriminal vein or the civil vein, in Canada's justice system, we strive for justice that is fundamentally fair and we acknowledge that perfectjustice is often unobtainable. This was succinctly pointed out, albeit, in the criminal context by Chief Justice McLachlin in the SupremeCourt of Canada decision of R. v.

O'Connor, (SCC), [1995] S.C.J. No. 98. At paragraph 193 she states: What constitutes a fair trial takes into account not only the perspective of the accused but the practical limits of the system ofjustice and the lawful interests of others involved in the process, like complainants and the agencies which assist them in dealing with thetrauma they may have suffered. Perfection in justice is as chimeric as perfection in any other social agency.

What the law demands is notperfect justice but fundamentally fair justice. [Emphasis added] [46] I add however, that notwithstanding the increased informality of the Small Claims Court and Residential Tenancies reviewprocess the proceedings of the court must conform to the principles of law and natural justice. It is intrinsic to the determination of aclaim that there is procedural fairness which ensures that an affected party knows the case they must meet and is provided with areasonable opportunity to present a response to that case.

This principle is encapsulated by the Latin term " audi alteram partem"- thatone should "hear the other side". [47] The appellant does not allege that it was denied a full opportunity to answer the allegation that the maintenance of drivewaysand walkways was a condition of the lease. The Director's decision states that: At the time of the hearing it was established and understood that the hearing would proceed under Section 13(1)(

a) of the ResidentialTenancies Act to determine a question arising under this Act. [48] I have considered the various arguments raised by the appellant in support of its contention that the Director acted in excess ofjurisdiction. I do not find them persuasive. I agree that Mr. Patriquin’s delay in bringing the matter forward had the potential toprejudice parties who act on the assumption that the "rent increase" is fixed by the limitation period in

section 11. However,

Section 13contemplates that questions arising from the tenancy can be brought forward for adjudication by the Director at any time up to one yearafter the termination of a tenancy. The legislation thus contemplates that there may be situations where parties can be called upon toretroactively account for problems arising in the tenancy long after the parties may have thought their relationship to be determined. [49] In my view, the Director acted within the scope of the jurisdiction that the RTA provides in sections 13, 16, 17 and 17A.

Therespondent was not applying for a "rent review" but rather a determination as to the respective responsibilities of the landlord and tenantfor the maintenance of the driveway. That is the question the Director answered. The decision consequentially ruled out the appellant'sargument that the limitation period under

section 11A

(4) RTA had expired. [50] I do not agree with the appellant's characterization of the Director's actions as a case of issuing an inappropriate orimpermissible order for pure Declaratory Relief. This was not a hypothetical question - it was an appropriate exercise by the Director of

the authority given by statute to determine a dispute between landlord and tenant, each of whom had a legitimate interest in the outcome of the proceeding. The result of the decision triggers a capital cost planning issue for the party that has the burden of maintaining the driveway. [ 51 ] I find no error on the part of the Adjudicator in upholding the decision of the Director to invoke

section 13 RTA to assume jurisdiction over the respondent's Form D Application. Grounds 6-12 : Is the maintenance of a driveway on the respondent's lot a Condition of Premises or a Service? [ 52 ] The Adjudicator's decision to conclude that maintenance of Mr.

Patriquin's driveway is the landlord's responsibility as a Condition of Premises is stated to be based on five points: 1) The mobile home provisions in the Residential Tenancy Act; 2) The bylaws of the town of Amherst; 3) The appellant's Director of Property Management stating that the "driveways and walkways are common areas" and maintenance is captured by the bylaws; 4) That the tenant was to keep the driveway in good condition, but the owner of the property is required to keep the driveways in a good state of repair; 5) That maintenance of the driveway is a capital cost which may well result in a rental increase.

The mobile home provisions in the Residential Tenancy Act Statutory conditions 9

(1) Notwithstanding any lease, agreement, waiver, declaration or other statement to the contrary, where the relation of landlord and tenant exists in respect of residential premises by virtue of this Act or otherwise, there is and is deemed to be an agreement between the landlord and tenant that the following conditions will apply as between the landlord and tenant as statutory conditions governing the residential premises: Statutory Conditions 1.

Condition of Premises - The landlord shall keep the premises in a good state of repair and fit for habitation during the tenancy and shall comply with any statutory enactment or law respecting standards of health, safety or housing. 2.

Services - Where the landlord provides a service or facility to the tenant that is reasonably related to the tenant's continued use and enjoyment of the premises such as, but not so as to restrict the generality of the foregoing, heat, water, electric power, gas, appliances, garbage collection, sewers or elevators, the landlord shall not discontinue providing that service to the tenant without proper notice of a rental increase or without permission from the Director. [ 53 ] The necessary elements to trigger a finding that the maintenance of a driveway is a "Condition of Premises" under section

9(1)1 include: i. that a driveway is part of the "premises"; ii. that the maintenance of the driveway is necessary to keeping the "premises" "in a good state of repair and fit for habitation". It may also be found to be a condition of premises where the maintenance is required by "statutory enactment or law". "Premises"

Section 2 (

h) of the RTA says that: (h) "residential premises" includes any house, dwelling, apartment, flat, tenement, mobile home, mobile home park, mobile home space or other place that is occupied or may be occupied by an individual as a residence or that part of any such place that is or may be occupied by an individual as a residence, … [ 54 ] Mr. Patriquin's manufactured home is listed in the definition of a "residential premise". The space on which his home sits is a "mobile home space" within the definition of

section 2(

f) of the RTA . The Park in which Mr. Patriquin resides is a "mobile home park" within the meaning of

section 2(

e) RTA . [ 55 ] The language of

section 2(

h) however qualifies the inclusion of these spaces as "residential premises" by limiting it to those areas that are "occupied or may be occupied by an individual as a residence or that part of any such place that is or may be occupied by an individual as a residence." [ 56 ] The appellant argues that a driveway is not capable of being occupied as a "residence". The appellant further points out that driveways and internal walkways are regulated by sections 9(1) 2, 4 and 5 RTA . [ 57 ] Are the grounds, including the driveway, around the manufactured home, also part of the residential premises?

When read in context it seems clear that the term "residential premises" targets the actual space occupied by the tenant as a residence. To hold otherwise would mean that flower beds, lawns, fences, garden sheds would all be "residential premises" by virtue of their placement on a mobile home space. This seems to fly in the face of the intended meaning. [ 58 ] Even if the language in

section 2(

h) is ambiguous enough to leave open the conclusion that the land and the building thereon are "residential premises", that does not define the relative responsibilities of landlord and tenant for maintenance of those "premises".

" in a good state of repair and fit for habitation " [ 59 ] The obligation of the landlord to make repairs, as a "condition of the premises", arises from the necessity of that repair to ensure the fitness of the premises for habitation. [ 60 ] The word "habitation" is defined in Webster's Third New International Dictionary (Chicago: Encyclopedia Brittanica, Inc, 1986) as "a dwelling place, house, home, residence". It is also defined as "a settlement, colony". It is the former

definitions which would apply in this context.

[ 61 ] It is self-evident that a parking space is for a vehicle, not as a place for humans to reside in. In dense urban environments, where space is at a premium and mass transit is more readily available, there may be circumstances where tenants have no requirement for a vehicle. Whether or not there is a driveway or parking spot for a tenant cannot render an otherwise perfectly maintained rental residence uninhabitable.

At most, the absence of a driveway, or the presence of a substandard driveway, may make a particular rental property less appealing to a prospective tenant who has a vehicle and wants to be able to park it next to their residence. So the need for a driveway may vary from tenant to tenant and would presumably form part of the tenant's decision making in selecting a place to live. [ 62 ] Municipalities however may regulate the requirement for suitable parking as part of its land use and planning strategy. The interests of a municipality to do so are not necessarily the same as those of the landlord or of a tenant.

Sections 9(1) 1; 9(2) 4, and 9(2) 5 of the RTA all speak to the obligations of landlords and tenants alike, to comply with any such legislated requirements, including those for parking. The extent to which municipal bylaws are a factor in this case is addressed later in this decision. [ 63 ] The respondent has argued throughout that the driveway is affixed to the land and therefore must be maintained by the landlord.

The argument has also been made that the provision and maintenance of a driveway enhances the value of the land, to the benefit of the landlord and so the landlord should bear the responsibility of maintenance. I will address these points in a different context later, but I note that section 9(1) 2 of the RTA describes "sewers or elevators" as "services" that if discontinued would require the issuance of a Notice of Rental Increase, as occurred here. Sewers and elevators would typically be thought of as fixtures and as enhancing the value of the land.

Their inclusion in section 9(1) 2 demonstrates that the legislation allows that not all asset value enhancing fixtures are necessary to the condition of the premises. The only logical

interpretation of the list of items in 9(1) 2 is that the legislators concluded that these were things that were not necessary for "habitation". [ 64 ] In

summary, the Residential Tenancies Act provides no support for the conclusion that the provision and maintenance of individualized driveways falls within the landlord's responsibilities as mandated by section 9(1) 1 of the RTA . It is doubtful that the land around the mobile home is a "residential premise" within the meaning of

section 2 (

e) of the RTA . Even if it is part of the premises, it is not necessary to make the property "fit for habitation". Town of Amherst Bylaws / Driveway as a Common Area [ 65 ] The relevance of considering municipal legal requirements that are applicable to the operations of the Park stems from sections 9(1)1 and 9(2) 4 of the RTA : 9 (1) 1. The landlord … shall comply with any statutory enactment or law respecting standards of health, safety or housing. 9 (2) 4.

The landlord is responsible for compliance with municipal by-laws in respect of the common areas of the mobile home park and the services provided by the landlord to the tenants in the mobile home park. [ 66 ] I have been referred to past and current enactments of the Town of Amherst that are said to be material to the issue. Those are: - Mobile Home Park Bylaw D-9 ( in effect) - Mobile Home Parks Bylaw (repealed September 7, 1988) - Land Use Bylaw P-2 - Minimum Standards for Residential Occupancies, Bylaw P-4 Mobile Home Park Bylaw D-9: communal areas

[ 67 ]

Section 1 (

j) of the current Mobile Home Park Bylaw states: … Ownership and responsibility for the maintenance of internal streets, services, communal areas and buildings, together with general park management including, but not restricted to, snow clearance and garbage collection, remains with the owner. [ 68 ] Is the language of

section 1(

j) inclusive enough to require the landlord to maintain individual driveways on each lot, or at least the one on Mr. Patriquin's lot? It could if, as the Adjudicator found, the driveway is a "common area". Driveways as a "Common area" [ 69 ] The Adjudicator based his conclusion on the evidence of the appellant's Director of Property Management who said that the driveways are common areas under the Bylaws. The respondent says that this is a finding of fact which is owed deference. [ 70 ] Whether a particular piece of property is a common area gives rise to a finding of mixed fact and law.

The facts relevant to the conclusion are the actual use of the driveway, in particular a determination of who exercises control over the use. The legal question is whether that use renders the property a "common area" to be shared in kind with others and so captured by the Bylaw. [ 71 ] The findings of fact in this case make it clear that the mobile home lot is rented out to the tenant for their exclusive use. They are assured quiet enjoyment. Even the rights of the landlord to enter upon the premises are subject to conditions.

A landlord cannot interfere with the possession or occupancy of the tenant. see, s. 9(1) 3 "Good Behaviour". The landlord can only enter the "premises" with consent of the tenant, except in certain circumstances. see, s. 9(1) 7. If the premises are taken to include the driveway, then it is self-evident that the tenant controls that land. [ 72 ] It is reasonable to expect a tenant to assert control as to who passes over that driveway. There is no evidence in the proceedings below to suggest that Mr. Patriquin's driveway was in use in common with any other tenant.

A conclusion that the driveway was to be maintained by the landlord as a common area could lead to the conclusion that the landlord has the right to open up use of that driveway to all of the tenants in common. This is not substantiated by the facts or by a review of the RTA . [ 73 ] The use and control of a driveway on a mobile home lot differs substantially, for example, from the roadway that passes by the lot, which is shared by other tenants, their invitees, the landlord and the general public.

The latter is an example of what, in law, would constitute a common area. [ 74 ] I have not been pointed to any Bylaw that specifies that a driveway on a mobile home lot is a communal area. [ 75 ] The Adjudicator, in my view, erred in law by failing to consider whether the use described by the witness rendered the driveway, in law, a common area. He erred in deferring to the witness' understanding of the legal character of the driveway. Simply because the witness held the opinion that it was a common area governed by a bylaw does not make it so.

This error in law was described by Saunders J. (as he then was) in Brett Motors as occurring: "…where the adjudicator has failed to apply the appropriate legal principles to the proven facts." [ 76 ] Having regard to the facts, and the law, I conclude that the driveway was not a "common area". As a result, the landlord's obligations created by law to maintain a common area does not extend to Mr. Patriquin's driveway.

Legal requirements for a driveway: Mobile Home Park Bylaw D-9 and Land Use Bylaw P-2 [ 77 ]

Section 2 of the Mobile Home Park Bylaw requires that anyone seeking to construct a new mobile home park must obtain a development permit. The Land Use Bylaw in

section 7.4 sets out the permitted uses and conformance requirements for a Mini Home Park Zone which would encompass the Park in question on this appeal.

Section 7.4.3 requires compliance with the Mobile Home Park Bylaw , which does not require a driveway. [ 78 ] Counsel for the appellant points out that the predecessor bylaw, repealed in 1988, mandated in

section 14 that every lot "shall" have one car parking with a minimum width of 9 feet and length of 20 feet. The provision further stipulated that the parking space was to be surfaced with a " … durable hard material, suitable for all weather use." Unobstructed access from the "internal roadway or public street" was also required. [ 79 ] It is apparent that the Town revised its planning approach for these types of Parks. The current Bylaw does not require a landlord to provide a driveway on the lot. [ 80 ] The appellant submits that the burden is on the tenant to provide parking for the mobile home. The law supports this position. [ 81 ] The Town of Amherst Land Use Bylaw

Section 1.0.27 defines "development" as including: Any erection, construction, addition, alteration, replacement or relocation of/ to any building or structure and any change or alteration in the use made of land, building or structures. [ 82 ] Bylaw

Section 3.3 requires a Development Permit before a "development" can be undertaken. So the tenant who seeks to erect or locate their home on the mobile home lot must have a Development Permit that complies with the requirement of the Land Use Bylaw . [ 83 ] Land Use Bylaw

Section 5.1 sets out "Parking Requirements". It reads: 5.1 (

a) For every building or structure to be erected or enlarged, or for which an application for a development permit involving a change of use is made, off-street parking located within the same lot as the use and having unobstructed access to a public street shall be provided and maintained in accordance with the following requirements. [ 84 ] It then provides a chart that specifies the minimum parking requirements for a variety of residential, commercial, institutional, community and industrial uses. In the case of a single family residential dwelling there must be at least one parking space.

Section 5.2(

a) specifies that the space must have a minimum size of 3m x 6m. The parking must have access to a public street. see,

Section 5.8. Failure to comply with any of these requirements will result in a denial of the Development Permit. [ 85 ] There is logic to this regime. The Municipality regulates the type and amount of parking necessary to any particular development. Parking is but one of a number of provisions to control development. The end product of the development is dictated at the time the development permit is sought, and it is sought by the person seeking to erect, in these cases, their mobile home. [ 86 ] In

summary, these Bylaws provide no support for the conclusion that a landlord in a Mobile Home Park is required to provide or maintain a driveway on a mobile home space.

Minimum Standards for Residential Occupancies, Bylaw P-4 [ 87 ] I have reviewed this Bylaw which is directed at the standards for building construction. It has no provisions that are material to this case. [ 88 ] I conclude that the Bylaws of the Town of Amherst do not support a conclusion that the landlord is required to provide a driveway on a mobile home lot, or to maintain one already in existence. In concluding otherwise the Adjudicator erred in law. The Director's Decision in J. Russell G. Pearston v.

Killam Properties [ 89 ] The argument in this case was precipitated by an earlier decision of the Director which the appellant says should have been but was not followed by the Director in this case, creating inconsistent treatment of tenants within the same Park. [ 90 ] As previously noted, the landlord continued the practice of repairing driveways until the end of 2009. The termination was a direct response to the decision of the Director in J. Russell G. Pearston v. Killam Properties , (Residential Tenancies File Number 200801848, Date of Decision: July 8, 2008). In that case, Mr.

Pearston was a tenant in the same Park as Mr. Patriquin. He received a Notice to Increase Rent effective January 1, 2009. He wanted that increase reviewed. He also requested an order requiring the landlord to repair his driveway and walkway. [ 91 ] The Decision confirmed the increase of rent, acknowledging that it was substantial, but concluding that: 3. Based on the financial information provided by Killam Properties Inc. and the adjustments for the allowable increase percentages for each service the proposed rental increase … is approved. 4. The tenant is awarded the repairs to his driveway and walkway.

These two services were provided by the original owner of the park at the commencement of the tenancy and carry on with the new owner. It is the landlord's responsibility to maintain this service . (emphasis added) [ 92 ] The position of the appellant is that the decision stands for the proposition that the repair of driveways and walkways in Mr. Patriquin's Park is a "service", not a "condition of premises". In taking that position with Mr.

Patriquin the landlord is seeking to be consistent in its treatment of all tenants in the Park. [ 93 ] The respondent submits that this decision was non-binding on the Director in Mr. Patriquin's case. Counsel argues that a correct

interpretation of the law supports the Adjudicator's conclusion. [ 94 ] The Pearston Decision offers no analysis of why the Director's Order concluded that this was a "service." It does not explain the authority being relied upon to make it " … the landlord's responsibility to maintain this service." The only statutory authority that seems to support this ruling is found in section 9(1)2: 9(1) 2 … the landlord shall not discontinue providing that service to the tenant without proper notice of a rental increase or without permission from the Director . [ 95 ] It is apparent that the Director had not given permission to discontinue the service. It is not possible to fathom whether the

rental increase approved in Pearston included a cost of repair to the driveways. [ 96 ] In the end analysis, the Pearston decision does not resolve much, other than to accentuate the importance of resolving the conflict that has resulted in uncertainty for tenants and the landlord alike at this Park. Capital Costs Argument [ 97 ] At the heart of the dispute is the disagreement as to who should pay the costs for ongoing maintenance of an existing driveway. If this were a new tenancy then the parties may have never entered into this debate. Mr.

Patriquin likes the status quo . [ 98 ] It has been suggested that it is unfair for the tenant to pay, since the cost of the driveway is a capital cost that should be amortized over the life of the driveway which is a time period that is unrelated to the length of the tenancy. The tenant therefore pays rent solely on the basis of the period of usage. The landlord then gets the benefit of the increased value of the lot by the attraction to future tenants of taking over the lot rental where it has this improvement. [ 99 ] The unique character of these Parks has been cited in response.

Home owners sell their home on the lot with the improvements enhancing the value of resale.

That is, if one tenant decides to have a driveway large enough for a recreational vehicle plus a car, that may have more value to a purchaser than one with an unpaved one car space. [ 100 ] The presence of decks, gazebos, fencing or sheds similarly all has the potential to increase the resale value of the property. [ 101 ] If the tenant bears the responsibility of providing and maintaining the driveway, they, so the argument goes, get the benefit in the same way that a homeowner does where they are also the owner of the land that the residence sits on. [ 102 ] It is not for me to assess whether these scenarios are accurate.

What is evident is that if it is a service, and if it is discontinued, then the landlord no longer includes the capital cost in the rent. It means that it provides a lower cost rent for those tenants who choose not to maintain a driveway or choose to maintain one that is more modest than what others may be prepared to pay for. For those who want the benefit of a driveway they can put the rent differential toward a capital account to maintain the lot. Either way the tenant will pay for it.

If it is a service the tenant exercises greater control in return for greater responsibility. [ 103 ] The point is that there are economic arguments in favor of the responsibility being that of the landlord, or of the tenant. It is not a basis upon which to resolve the legal question of "service" or "condition of premises". Conclusion [ 104 ] The Adjudicator erred in law in concluding that the repair of the respondent's driveway is a condition of the premises within the meaning of section 9(1) 1 of the Residential Tenancies Act .

I conclude that it is a service and subject to discontinuance in accordance with section 9(1) 2. [ 105 ] The appellant gave proper Notice of an Increase in Rent to support its decision to discontinue this service. The respondent had a right to seek a review of that rent increase, but did so after the limitation period provided for in

section 11A (4) of the RTA expired. Therefore the Notice of Rent Increase as against the tenant, Mr. Patriquin, was valid. The review initiated by him is out of time. [ 106 ] The appeal is allowed. I direct counsel for the appellant to prepare the Order. J.