Haliburton (County) v. Gillespie

Haliburton (County) v. Gillespie Collection Decisions of the Court of Appeal Date 2013-01-25 Neutral citation 2013 ONCA 40 Docket numbers C54563 Judges Goudge, Stephen Thomas; Sharpe, Robert J.; Gillese, Eileen E. Subject Civil Decision Content COURT OF APPEAL FOR ONTARIO CITATION: Haliburton (County) v. Gillespie, 2013 ONCA 40 DATE: 20130125 DOCKET: C54563 Goudge, Sharpe and Gillese JJ.A. BETWEEN The Corporation of the County of Haliburton Respondent and David L. Gillespie Appellant Tyler Hodgson, for the appellant Neil Abbott and Sirpal Randhawa, for the respondent Heard: November 16, 2012 On appeal from the judgment of Justice Lorne E. Chester of the Ontario Court of Justice, dated September 8, 2011, allowing an appeal from the judgment of Justice of the Peace D. Jackson, dated January 6, 2011. Sharpe J.A.: [1] While driving an all-terrain vehicle (“ATV”), the appellant, David L. Gillespie, was stopped at a RIDE program within the boundaries of the common area of Harcourt Park. [2] He was charged with contravening s. 19(1) of the Off-Road Vehicles Act, R.S.O. 1990, c. O.4, which makes it an offence to drive or ride an off-road vehicle without wearing a helmet. [3] The issue on this appeal is whether the appellant, as a lessee and member of Harcourt Park, is an “occupier” of the land comprising the common area of Harcourt Park and therefore exempt from the ordinary obligation imposed on the operator of an ATV to wear a helmet pursuant to s. 19(2) of the Off-Road Vehicles Act. [4] Harcourt Park, a 7000-acre parcel of land in the County of Haliburton, is owned by Harcourt Park Inc. (the “Corporation”), a non-share capital corporation. Harcourt Park is private property to which the public is not permitted entry except on invitation from a leaseholder. The Corporation leases 582 half-acre, individual, lake-front parcels to leaseholders, including the appellant, who are also members of the Corporation. Some parcels are combined and there are approximately 540 lessees. As a lessee, the appellant enjoys exclusive possession of his own parcel and shares with the other leaseholders the right to use the common area of Harcourt Park. [5] The appellant was acquitted by the Justice of Peace who found that the appellant was an “occupier” of the common area of Harcourt Park for the purposes of the Off-Road Vehicles Act. On appeal to the Ontario Court of Justice, the appeal judge disagreed and found that the Corporation, not the individual lessees, has responsibility and control over the common area and that the appellant was not an “occupier” and therefore not exempt from the provisions of the Off-Road Vehicles Act. The appeal judge entered a conviction and imposed a suspended sentence. The appellant appeals to this court with leave. For the following reasons, I would dismiss the appeal and uphold the conviction. FACTS [6] Harcourt Park contains 45 km of private roads intended for the use of the lessees and their invitees. Harcourt Park is private property and routine government and municipal services such as road maintenance, snow clearance, mail delivery, and garbage collection are not available. Signs at the only two entrances to Harcourt Park from public roads are marked: “Harcourt Park Incorporated. Private Property. No Trespassing. Private Drive. Trespassers will be prosecuted. No Exit.” [7] The 582 individual leased parcels comprise about 4% of the total area of Harcourt Park. Lessees, who are also members of the non-share capital Corporation, have exclusive possession of their leased parcels and access to the common area for recreational activities including fishing, hiking, skiing and snowmobiling. Lessees pay an annual fee for the upkeep of the common area and routinely volunteer to perform maintenance work. [8] The Corporation’s by-laws, approved by the membership at an annual general meeting, regulate the activities permitted in the common area. The by-laws provide that to enter Harcourt Park, a non-member must be invited by a member. Members are permitted to invite two guests at any one time. Guests are required to carry guest cards and the by-laws stipulate that members are responsible to ensure that their guests comply with the by-laws. It is the practice for members to escort uninvited non-guests to the property line. Two members are employed as part-time security officers to enforce the by-laws and escort trespassers from the property. [9] In the belief that some provincial legislation, including the Off-Road Vehicles Act, does not apply within the property, the Corporation enacted by-laws mimicking that and other legislation. By-law 48 provides that off-road vehicles must be operated as required by the Off-Road Vehicles Act and specifically requires the driver of such vehicles to wear a helmet. LEGISLATION [10] The offence and exemption at issue on this appeal are found in s. 19 of the Off-Road Vehicles Act: 19 (1) No person shall drive an off-road vehicle or ride on an off-road vehicle or on a conveyance towed by an off-road vehicle unless he or she is wearing a helmet that complies with the regulations, securely fastened under his or her chin with a chin strap. (2)This section does not apply to a person driving or riding on an off-road vehicle or on a conveyance towed by an off-road vehicle where the owner of the off-road vehicle is the occupier of the land. [11] “Occupier” is defined in s. 1: “occupier” includes, (a) a person who is in physical possession of the land, or (b) a person who has responsibility for and control over the condition of land or the activities there carried on, or control over persons allowed to enter the land, even if there is more than one occupier of the same land; (“occupant”) [12] The French version of the definition is: «occupant» S’entend de : a) celui qui a la possession matérielle du bien-fonds; b) celui qui a la responsabilité et la surveillance de l’état du bien-fonds, des activités qui y sont exercées ou le contrôle des personnes admises à pénétrer sur le bien-fonds, peu importe qu’il y ait plus d’un occupant sur le même bien-fonds. («occupier») [13] The same or virtually the same definition of “occupier” is found in the Occupiers’ Liability Act, R.S.O. 1990, c. O.2, s. 1 and the Trespass to Property Act, R.S.O. 1990, c. T.21, s. 1: “occupier” includes, (a) a person who is in physical possession of premises, or (b) a person who has responsibility for and control over the condition of premises or the activities there carried on, or control over persons allowed to enter the premises, despite the fact that there is more than one occupier of the same premises; (“occupant”) [The Trespass to Property Act provides “even if there is more than one occupier of the same premises”.] JUDICIAL HISTORY Trial before the Justice of the Peace [14] The Justice of the Peace found that Harcourt Park was private property not accessible to the general public. As the Corporation is the “occupier” of the common area, it followed that as a member of the Corporation, the appellant was an occupier of the common area and therefore exempt from the helmet requirement. Appeal to the Ontario Court of Justice [15] The appeal judge rejected the submission that as the Corporation owns and controls the use of the common areas and as the members control the Corporation, it follows that a member meets the definition of “occupier”. The appeal judge applied the well-established principle that a corporation is distinct from its members or shareholders. He held that as one of the lessee-members, the appellant did not have physical possession or control for the purposes of the statutory definition. It is the Corporation, and not its individual members, that has “responsibility for and control over the condition of the land” constituted by the common areas. ANALYIS Principles of Statutory Interpretation [16] This case poses a question of statutory interpretation. In Bell ExpressVu Limited Partnership v. Rex, [2002] 2 S.C.R. 559, 2002 SCC 42, at paras. 26 and 27, the Supreme Court of Canada set out the “preferred approach”, derived from “Elmer Driedger’s definitive formulation, found at p. 87 of his Construction of Statutes (2nd ed. 1983): ‘Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.’” The preferred approach is “buttressed” by the Legislation Act, 2006, S.O. 2006, c.21, Schedule F, s. 64(1), which provides that every enactment “shall be interpreted as being remedial and shall be given such fair, large and liberal interpretation as best ensures the attainment of its objects”. [17] The preferred approach also “recognizes the important role that context must inevitably play when a court construes the written words of a statute” and stipulates that “where the provision under consideration is found in an Act that is itself a component of a larger statutory scheme, the surroundings that colour the words and the scheme of the Act are more expansive”: Bell ExpressVu, at para. 27. This gives rise to what was described in R. v. Ulybel Enterprises Ltd., [2001] 2 S.C.R. 867, 2001 SCC 56, at para. 52, as “the principle of interpretation that presumes a harmony, coherence, and consistency between statutes dealing with the same subject matter”. [18] I note here that there appear to be no cases interpreting the definition of “occupier” in the Off-Road Vehicles Act, but several cases dealing with the definition under the Occupiers’ Liability Act. Interpreting “occupier” in the Off-Road Vehicles Act [19] I begin with an assessment of the Off-Road Vehicles Act as a whole. The Act contains various provisions for licensing and identifying the owners of off-road vehicles and making owners responsible for damage caused by their vehicles. The Act requires drivers of off-road vehicles to have a permit (s. 3) and provides for number plates on such vehicles (s. 5(3)). Drivers of off-road vehicles must be insured (s. 15) and the owner of an off-road vehicle is jointly and severally liable for any damages caused by a non-owner driver (s. 12). Similarly, the owner may be charged and convicted of any offense for which the driver is liable (s. 14). Other provisions relate to records (s. 5(6)), regulations regarding permits and permit numbers (s. 5(7)), change of ownership (s. 8) and address (s. 6(2)), and uses and display of permits (ss. 7, 8, 10, 11). [20] Certain provisions, including the helmet requirement at issue on this appeal, relate to public safety. These include the mandatory insurance requirement, which protects injured persons as well as owners of property damaged. Other public safety provisions are the offence of careless driving (s. 16) and the minimum age of 12 for drivers (s. 4). [21] Where an off-road vehicle is used on land “occupied” by the owner of the vehicle, the following requirements imposed on owners and drivers of off-road vehicles do not apply: the need for a permit (s. 3(3)); the minimum age of 12 for drivers (s. 4(2)); the mandatory insurance requirement (s. 15(9)); and the mandatory helmet requirement (s. 19(2)). [22] The Off-Road Vehicles Act would appear to have a two purposes or objects: first, the identification and control of such vehicles; and second, public safety. We were provided with the Minister’s statement when introducing the Off-Road Vehicles Act in the legislature in 1983: Ontario, Legislative Assembly, Official Report of Debates (Hansard), 32nd Parl, 3rd Sess, Vol. 2, (7 June 1983), at p. 1455 (James Snow). The Minister summarized the intention of the bill as being “to encourage the safe driving of these vehicles and provide a method of control and identification”. The Minister indicated that municipalities had urged the adoption of provincial licensing and regulation of such vehicles to allow for the identification of drivers and control of damage to public property. [23] I turn to the specific provision that concerns us on this appeal, namely, the definition of “occupier”. Under the statutory definition, there are four ways a person can be an “occupier”: 1. be in physical possession of the land; 2. be responsible for and have control over the condition of the land; 3. be responsible for and have control over the activities there carried on; or 4. have control over persons allowed to enter the land. See Moody v. Toronto (City) (1996), 31 O.R. (3d) 53 (Gen. Div.) and Lemieux v. Porcupine Snowmobile Club of Timmins Inc. (1999), 120 O.A.C. 292 (C.A.); both cases deal with the Occupier’s Liability Act and adopt this four-part classification. [24] The appellant concedes that he does not qualify as an “occupier” as “a person who is in physical possession of the land”. [25] His primary submission is that because only lessees and their guests are allowed on the common area, as a lessee, he has “control over persons allowed to enter the land” and thus meets the definition of “occupier”. [26] I am unable to accept that submission. The right, shared with other lessees, to invite guests to be on the common area does not, on the facts of this case, amount to having “control over persons allowed to enter the land”. When used in conjunction with “occupier”, the word “control” suggests, at a minimum, the capacity to determine who may and who may not be on the property. The appellant does not have that capacity in any meaningful sense. There are approximately 540 lessees, each of whom is entitled to have his or her own family members on the common area and to invite two guests at a time to be on the common area. Each guest is permitted to include his or her spouse and children. This means that there could be thousands of people on the common area. Of that number, the individual lessee would “control” only himself and his two guests. He would have no say whatsoever as to the other lessees, their family members, their invitees and the family members of their invitees. In my view, that does not amount to having “control over persons allowed to enter the land”. [27] The appellant also submits that he fits the definition of “occupier” as he “has responsibility for and control over the condition of the land or the activities there carried on”. [28] I disagree with that submission. It is clear from the record that the legal entity that owns and has responsibility for and control over the condition of the common area and the activities there carried on is the Corporation. The appellant, as a lessee and member of the Corporation, has the right to participate in the affairs of the Corporation and to vote on by-laws dealing with the condition and maintenance of the common area and the activities permitted thereon. However, as the appeal judge stated, referring to Salomon v. Salomon, [1897] A.C. 22, “a corporation is a separate legal entity distinct from the shareholders or members of the corporation” and: It is the corporation through its managers or special guards who has control over the conditions of the land and control over the persons allowed to enter the lands. It is Harcourt Park Inc., not its members or its individual members, who have “responsibility for and control over the condition of the land”. [29] I will return to this aspect of the definition of “occupier” when I discuss the Occupiers’ Liability Act. [30] To hold that the appellant is an “occupier” would, in my opinion, be inconsistent with both remedial purposes of the Off-Road Vehicles Act. As the helmet requirement is one of the provisions that have public safety as their purpose, it is appropriate to ask whether that public safety purpose would be fostered or frustrated by interpreting “occupier” as broadly as advocated by the appellant. The answer to that question is clear. When driving his ATV on the common area, the appellant is on a large tract of land shared with a large number of fellow lessees and their guests. His own safety and that of his fellow lessees, their families and their guests is at risk. I see no reason to grant him an exemption that would require a strained interpretation of the definition of “occupier”. There is a clear public safety interest in requiring him to wear a helmet, to be insured and to ensure that drivers of his vehicle are over 12 years old. [31] I reach a similar conclusion when the other purpose of the statute is considered, namely to provide for a method of control and identification. The interpretation urged by the appellant would exempt him from the obligation to have a permit for his ATV when on the common area. The common area is expansive, and a large and diffuse group of lessees and invitees are permitted on it. There is every reason to insist that drivers of such vehicles should comply with the permit requirements to allow for their identification and control. [32] I add here that it is no answer to say that the Corporation has adopted by-laws that mimic the provisions of the Off-Road Vehicles Act. The Corporation could just as easily repeal those by-laws. Regardless, its members do not have a choice whether to abide by the laws of Ontario. Cases Interpreting “occupier” in the Occupiers’ Liability Act [33] My conclusion on the interpretation of “occupier” in the Off-Road Vehicles Act is significantly fortified when I consider the need to interpret that definition in a manner consistent and harmonious with the use of the virtually identical definition in the Occupiers’ Liability Act. Section 3 of that statute imposes on occupiers a legal duty “to take such care as in all the circumstances of the case is reasonable to see that persons entering on the premises, and the property brought on the premises by those persons are reasonably safe while on the premises.” Failure to satisfy that duty will result in civil liability to any person who suffers injury as a result. [34] Interpreting “occupier” for the purposes of the Occupiers’ Liability Act requires the court to consider and weigh competing notions with respect to liability. The judge must determine when it is reasonable to impose a duty to those who suffer harm while on the property. Given the obligations attached, it is not surprising that the courts have consistently held that more than simply the right to use the land and the right to invite guests onto the land will be required to impose the duty of care of an occupier. [35] It has been held that having the right to use land does not make a person an occupier: see Davies v. Clarington (Municipality) (2006), 266 D.L.R. (4th) 375 (Ont. S.C.), holding that an adjacent landowner who had a right-of-way over the area in question was not an occupier. Several cases regarding slip and fall injuries deal with the liability of tenants who enjoy the right to use common areas in shopping malls and parking lots. Such tenants often have the right to invite patrons to use or park in the common areas and may exercise some control over the common areas and the activities carried on there. These cases typically turn on the terms of the lease agreements between the mall owners and the mall tenants that determine which party has responsibility for upkeep, what rights the tenants have to use the common areas, and how many other tenants have the right to use or control the use of that space. [36] Generally, the tenant’s right to use parts of the common areas (including a parking lot) is seen to be separate and distinct from the tenant’s rights regarding its own leased premises. The rights enjoyed in relation to common areas ordinarily do not make the tenant an “occupier” of those areas: Crisostimo v. Rosenthal (1988), 65 O.R. (2d) 43 (H. Ct. J.); Werden v. Windview Investments Inc., [1995] O.J. No. 4692 (Ont. Ct. Gen. Div.); Cress v. Beauregard Enterprises Ltd., [2000] O.J. No. 205 (S.C.). Even where a tenant had assumed enough control voluntarily to pay for and organize snow removal, the court did not find sufficient evidence of control to make the tenant an “occupier”: Crisostimo. The right to have some (although not exclusive) use of the parking lot to allow customers of the tenant to park their cars is not sufficient to constitute occupation, particularly where there are other tenants who also have the same right regarding their customers. [37] While clearly not on all fours with the facts of this case, these authorities suggest that the right to use the land and to invite others to do so will not be sufficient to make the right-holder an “occupier”. While the right to allow certain individuals (like guests) onto the land will point somewhat toward occupation, if others also have that right then occupation is less likely. Stronger control over precisely who is permitted or excluded or over the state of the land or the activities carried on there will be required to establish liability as an “occupier”. CONCLUSION [38] Accordingly, I conclude that the appellant does not meet the definition of “occupier” in the Off-Road Vehicles Act, when the definition is read in the entire context of the Act and the words of the definition are given their grammatical and ordinary sense, interpreted harmoniously with the scheme and object of that Act, the intention of the legislature, and the other two statutes that employ the same language. [39] For these reasons, I would dismiss the appeal and affirm the decision of the appeal judge convicting the appellant. “Robert J. Sharpe J.A.” “I agree S.T. Goudge J.A.” “I agree E.E. Gillese J.A.” Released: January 25, 2013