MOBILE HOME SALES LTD.

RE PARK MOBILE HOME SALES LTD. AND LE GREELY (618) RE PARK MOBILE HOME SALES LTD. 283 RE PARK MOBILE HOME SALES LTD. AND LE GREELY (1978), 85 D.L.R. (3d) 618 British Columbia Court of Appeal, Farris C.J.B.C., Taggart and SeatonJJ.A., 6 March 1978 (On appeal from judgment of British Columbia County Court, suprap.278) 284 RE PARK MOBILE HOME SALES LTD. (618) Landlord and tenant -- Rent -- Increase -- Whether provisions of Landlordand Tenant Act restricting rent increases applicable to premises located on In- dian reserve where landlord and tenant not Indians -- Landlord and Tenant Act,1974 (B.C.), c. 45, s. 27. Indians -- Jurisdiction -- Landlord and Tenant Act restricting right to in- crease rent -- Whether applicable to tenancy of residential premises on Indianreserve where landlord and tenant not Indians -- Landlord and Tenant Act, 1974(B.C.), c. 45, s. 27. Section 27 (rep. & sub. 1974, c. 109, s. 10) of the Landlord and Tenant Act , 1974(B.C.), c. 45, which restricts the right of a landlord to increase rent for residentialpremises, applies to a month-to-month tenancy of a pad located in a mobile homepark on an Indian reserve where the landlord and tenant are not Indians. The Landlord and Tenant Act is within the legislative authority of the Province pur- suant to s. 92 of the British North American Act, 1867 , and is not legislation in rela- tion to a subject-matter assigned exclusively to the Canadian Parliament under91 of that Act. [ Cardinal v. A.-G. Alta. (1973), 40 D.L.R. (3d) 553, 13 C.C.C. (2d) 1, [1974] 2 S.C.R.695, [1973] 6 W.W.R. 205, apld; Corp. of Surrey et al. v. Peace Arch Enterprises Ltd.et al. (1970), 74 W.W.R. 380, distd] APPEAL from a judgment affirming the jurisdiction of the rent- alsman. John A. McAfee , for applicant, appellant. J. T. Steeves and N. W. Dowad , for respondents. The judgment of the Court was delivered by FARRIS, C.J.B.C.:--The issue in this appeal is whether s. 27 [rep.& sub. 1974, c. 109, s. 10] of the Landlord and Tenant Act , 1974(B.C.) c. 45, which restricts the right of a landlord to increase rentfor residential premises applies to a month-to-month tenancy of apad located in a mobile home park on an Indian reserve, the land- lord and tenant being non-Indians. It is my view that this sectiondoes apply. The Tsinstikeptum Indian Reserve No. 9 is located in OsoyoosDivision of the Yale District of the Province of British Columbia.On July 1,1971, Her Majesty the Queen, represented by the Minis- ter of Indian Affairs and Northern Development, leased to Wes- Kel Holdings Ltd., Lots 31 and 32 of the reserve, for a term of 50years. On October 12,1972, Wes-Kel Holdings Ltd. sublet the prop- erty (for the balance of the term) to Park Mobile Homes Sales Ltd.,the appellant herein. In August, 1975, the appellant rented a mo- bile home pad to the respondent Le Greely pursuant to the termsof a month-to-month residential tenancy agreement. Subsequently,a dispute arose between the appellant and the respondent in re- spect of a proposed rent increase. (619) RE PARK MOBILE HOME SALES LTD. 285 A hearing was held on the matter before the rentalsman underthe provisions of the Landlord and Tenant Act . At the hearing,counsel for the appellant argued that the rentalsman was withoutjurisdiction to hear the dispute as the mobile park was located onIndian land belonging to the federal Government. The rentalsmanruled that he did have jurisdiction to hear this dispute. An appealwas taken from his decision to His Honour Judge Macdonald, who,in effect, affirmed the rentalsman's decision. It is from thisaffirmation that the present appeal is brought. Section 91(24) of the British North America Act, 1867 confersexclusive authority on the Parliament of Canada to legislate in re- lation to "Indians and Lands reserved for the Indians". Pursuantto this paragraph Parliament has enacted the Indian Act , R.S.C.1970, c. I-6. Section 60(1) of the Act provides that the Governor inCouncil may, at the request of a band, grant to the band the rightto exercise such control and management over land in the reserveoccupied by that band as the Governor in Council considers desira- ble. It is common ground that there has been no exercise of thispower. It is also common ground that there has been no exercise ofthe power of the Governor in Council to make regulations under s.73(1) applicable to the lands in question. Section 88 of the Indian Act reads as follows: 88. Subject to the terms of any treaty and any other Act of the Parliamentof Canada, all laws of general application from time to time in force in anyprovince are applicable to and in respect of Indians in the province, except tothe extent that such laws are inconsistent with this Act or any order, rule, reg- ulation or by-law made thereunder, and except to the extent that such lawsmake provision for any matter for which provision is made by or under thisAct. It is agreed that this section has no application to the present dis- pute as neither the appellant nor the respondent is an Indian andalso it does not apply to Indian lands. Counsel for the appellant concedes that the Landlord and Ten- ant Act is valid legislation within the competence of the Legisla- ture of British Columbia. He also concedes that it is an Act of gen- eral application. The sole question in this appeal is whether or nots. 27 of that Act applies to the tenancy in question. We were in- vited by counsel for the appellant to rule on the application of allsections of the Landlord and Tenant Act to lands forming part ofan Indian reserve. This I decline to do. It is the practice of thisCourt to deal only with the specific dispute that is before it. In my view, the result of this appeal is determined by the major- ity decision of the Supreme Court of Canada in Cardinal v. A.-G.Alta. (1973), 40 D.L.R. (3d) 553, 13 C.C.C. (2d) 1, [1974] 2 S.C.R. 695,and particularly at p. 560 D.L.R., p. 703 S.C.R., where Mr. JusticeMartland, speaking for the majority of the Court, said: 286 RE PARK MOBILE HOME SALES LTD. (620) In my opinion, the test as to the application of provincial legislation within areserve is the same as with respect to its application within the Province andthat is that it must be within the authority of s. 92 and must not be in relationto a subject-matter assigned exclusively to the Canadian Parliament under s.91. Two of those subjects are Indians and Indian reserves, but if provincial leg- islation within the limits of s. 92 is not construed as being legislation in relationto those classes of subjects (or any other subject under s. 91) it is applicableanywhere in the Province, including Indian reserves, even though Indians orIndian reserves might be affected by it. My point is that s. 91(24) enumeratesclasses of subjects over which the federal Parliament has the exclusive powerto legislate, but it does not purport to define areas within a Province withinwhich the power of a Province to enact legislation, otherwise within its pow- ers, is to be excluded. Here, the Landlord and Tenant Act is within the authority of s.92. It is not in relation to a subject-matter assigned exclusively tothe Canadian Parliament under s. 91. This case is stronger on its facts than was the Cardinal case.There the Court held that if the legislation passed the above-men- tioned test it would be applicable everywhere in the Province, in- cluding Indian reserves, even though Indians or Indian reservesmight be affected by it. In the present case, the dispute is betweennon-Indians; further, an increase in rent does not affect Indianlands or the use of Indian lands. It follows that the rentalsman hasjurisdiction under s. 27 of the Landlord and Tenant Act to dealwith the dispute. Counsel for the appellant relied on the decision of this Court in Corp. of Surrey et al. v. Peace Arch Enterprises Ltd. et al. (1970),74W.W.R. 380, where it was held that developers holding a lease oflands forming part of an Indian reserve were not subject to munic- ipal zoning by-laws or to regulations made under the provincial Health Act , R.S.B.C. 1960, c. 170. In that case, however, the Courtheld that both zoning and health regulations were directed to theuse of that land. At p. 383, Maclean, J.A., speaking for the Court,said: It follows, I think, that if these lands are "lands reserved for the Indians"within the meaning of that expression as found in sec. 91(24) of the B.N.A.Act, 1867 , that provincial or municipal legislation purporting to regulate theuse of these "lands reserved for the Indians" is an unwarranted invasion of thelegislative jurisdiction of Parliament to legislate with respect to"lands reserved for the Indians". In Cardinal v. A.-G. Alta., supra , the Supreme Court of Canadainterpreted this decision as meaning that the provincial legislationin question related to the use of Indian lands and was therefore notapplicable to them. See the remarks of Martland, J., at pp. 560-1D.L.R., pp. 704-5 S.C.R.: In District of Surrey v. Peace Arch Enterprises Ltd. (1970), 74 W.W.R. 380,the situation was different. It involved lands in an Indian reserve which hadbeen "surrendered" in trust to the federal Crown for the purpose of leasing.The issue was as to whether the lands were subject, in their use by the lessees, (621) RE PARK MOBILE HOME SALES LTD. 287 who were non-Indians, to certain municipal by-laws and to Regulations underthe provincial Health Act . The Court found that the lands in question were still"lands reserved for the Indians" and, that being so, only the federal Parlia- ment could legislate as to the use to which they might be put. The Morley case[ R. v. Morley (1931), [1932] 4 D.L.R. 483, 58 C.C.C. 166, [1932] 2 W.W.R. 193] isnot mentioned in the judgment and I presume that this was so because thecases were not considered as parallel. Once it was determined that the lands re- mained lands reserved for the Indians, provincial legislation relating to theiruse was not applicable. The game law considered in the Morley case governedthe conduct of persons hunting game in British Columbia and was held to ap- ply in all parts of the Province. The Surrey case is thus distinguishable from that now before us.In the present case the section in question is not legislation in rela- tion to Indian land or the use of Indian land. A number of cases dealing with paramountcy and occupied fieldwere referred to by counsel, but that question does not arise be- cause the field has not been occupied by federal legislation. Accordingly, I would dismiss the appeal. Appeal dismissed.

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