Municipal Bylaws (Residential Zone Restrictions)

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Caselaw.Ninja, Riverview Group Publishing 2021 ©
Date Retrieved: 2022-01-27
CLNP Page ID: 1792
Page Categories: [By-Laws], [Interference of Reasonable Enjoyment (LTB)], [Constitutional Law]
Citation: Municipal Bylaws (Residential Zone Restrictions), CLNP 1792, <https://caselaw.ninja/r/4V>, retrieved on 2022-01-27
Editor: Sharvey
Last Updated: 2021/10/29


CEL-43284-14 (Re), 2014 CanLII 61453 (ON LTB)[1]

1. The property is a house. The Tenants rent the basement unit.

2. In June 2014, the Landlord received a Zoning Notice of Non-Compliance (LL Exhibit 1) from the City of Brampton. The Zoning Notice states that the zoning of the property permits only a single dwelling unit and the second unit (the basement unit) contravenes the zoning by-law. The Landlord is directed to remove the locks separating the units as well as the stove from the second unit in the basement by July 4, 2014.

3. The Landlord argued that, due to the by-law, the unit is no longer suitable for renting purposes and he wants to terminate the tenancy to comply with the zoning and by-law requirements.

4. The Landlord, as the applicant has the burden of proof in this application. To meet that burden, the Landlord must establish the requirements of subsection 63(1)(b) of the Residential Tenancies Act, 2006 (the ‘Act’).

5. That subsection requires that the Landlord establish that the Tenants are using the rental unit in a manner that is inconsistent with use as residential premises and that has caused or is expected to cause damage that is “significantly greater” than the damage that is required to give a notice of termination under subsection 63(1)(a) or section 62 of the Act.

6. The Landlord did not establish the requirements of subsection 63(1)(b) of the Act.

7. The Landlord argued that the fact that the zoning by-law does not permit the basement unit means that the Tenants are using the unit in a manner inconsistent with use as residential premises. I do not accept this argument.

8. It is the Landlord, as the owner of the property, who is not in compliance with the zoning by-law, not the Tenants. The Tenants have not used the rental unit in a manner that is inconsistent with use as residential premises. There is no dispute that the unit is their residence and they live in it in and make use of it in the typical expected manner.

9. The fact that the basement unit does not comply with the zoning by-law does not change that it is a rental unit under the Act. It meets the definition of a rental unit in section 2 of the Act. The non-compliance with the zoning by-law is the Landlord’s issue with the City. It has nothing to do with the Tenants and their unit is still a rental unit which is covered by the Act.

10. Furthermore, even if the Landlord had established the first requirement of subsection 63(1)(b) of the Act, the Landlord did not establish that the Tenants’ use of the unit has caused or is expected to cause damage to the unit in an amount “significantly greater” than the damage required to give a notice of termination under subsection 63(1)(a) or section 62 of the Act.

11. The Landlord did not establish that there is any damage at all. However, even if some damage was established that would not be enough. The Landlord has to establish that the amount of damage is “significantly greater” than the damage that would justify issuing a notice of termination under subsection 63(1)(a) or section 62 of the Act.

12. The Landlord should have ensured that the rental unit was in compliance with zoning by-laws before renting it to the Tenants. The Landlord now wants to transfer his non-compliance problem with the City onto the Tenants. That is unreasonable and unfair.

13. I recognize that the Landlord’s obligations under the Act and with the zoning by-law are in conflict. However, the Landlord can not remove the lock to the Tenants’ unit or remove the stove in the unit. This will be an offence under sections 233(b) and 235(1) of the Act.

It is ordered that:

The Landlord's application is dismissed.

[1]

TSL-80995-17 (Re), 2017 CanLII 28549 (ON LTB)[2]

23. It is plain from my review of the by-law that this property is zoned as commercial.

24. The issue in this application is whether or not the Tenant’s residential occupancy in this commercial building constitutes an “illegal act” for the purposes of s.61(1).

25. Guideline 9 “Eviction for an illegal act or business” assists my understanding of an “illegal act” for the purposes of the Act. It reads in part:

“The term illegal is not defined in the RTA but would indicate a serious violation of a federal, provincial or municipal law. If the illegality is trivial or technical, the act or business or occupation might not be considered serious enough to warrant eviction.
An illegal act will be serious if it has the potential to affect the character of the premises or to disturb the reasonable enjoyment of the landlord or other tenants. The seriousness of the ground can be seen in the fact that there is no opportunity in s.61 for the tenant to avoid termination by rectifying the illegal act.
The fact that a tenant or another occupant may have devised a fraud in the unit, written a bad cheque or failed to file a tax return does not create a threat to the other tenants in the building or a problem for the landlord. By contrast, drug offences may bring the risk of harmful effects upon the occupants of the complex.” [emphasis added].

26. Based upon the totality of the evidence presented, I am not persuaded that the Tenant’s residence in the commercial building constitutes a sufficiently serious violation of the law so as to constitute an “illegal act” for the purposes of s.61(1).

27. First in this respect, I am unconvinced that the “act” in question – in this case – the Tenant moving in and living – is an act of sufficient extremity or gravity so as to properly considered “serious” for the purposes of Guideline 9 or the Act.

28. Further, in my view, this is technical, rather than substantive violation of the by-law. The Tenant is indeed living in a commercially zoned space; I do not see the Tenant’s actions, per se, to be serious enough to come within the meaning of “illegal act” for the purposes of the Act.

29. I am alive to the fact that Guideline 9 as quoted above raises the possibility that acts by a Tenant which may “…affect the character of the premises” may be “serious”. Here, I do not see the Tenant as engaging in such acts as used in Guideline 9. Indeed, I accept has credible his evidence that he was not the first residential user of the unit; and therefore, I accept that the Tenant’s acts, on their own, did not in themselves shift the use of the unit from commercial to residential for the purposes of Guideline 9.

30. I am comforted in this position by the content of the City order, which, in my view, instead of placing emphasis on the seriousness of the Tenant’s violation of the bylaw in light of the commercial zoning, directs the Landlord to take the steps necessary to continue the unit for ostensibly residential occupancy.

31. I have reviewed the case law provided by the Landlord, including the decision of Member Ruth Carey in TEL-70371-16, which concluded that “…continuously breaching the City’s zoning by-law is an illegal act within the meaning of subsection 61(1).” Member Carey’s decision is not binding on me and I do not find it persuasive in this context, particularly as it is distinguishable on its facts.

32. Accordingly, I conclude that the Tenant has not committed an illegal act for the purposes of s.61(1) of the Act. Therefore, this application should be dismissed.


[2]

London Property Management Association v. City of London, 2011 ONSC 4710 (CanLII)[3]

The Test Required under s. 14 of the Municipal Act

[34] As previously set out, section 14 of the Municipal Act provides that a municipal by-law is without effect to the extent that it conflicts with a provincial statute.

[35] In Croplife Canada v. Toronto (City) (2005), 2005 CanLII 15709 (ON CA)[4], 75 O.R. (3d) 357 (C.A.), the Court of Appeal dealt with a by-law limiting the use of pesticides within the City of Toronto. To determine whether the by-law conflicted with federal or provincial legislation, the court applied the following test at para 63:

…the conflicts test explicitly provided in s. 14 of the Municipal Act, 2001 must be interpreted in accordance with the two-pronged test prescribed in Rothmans: (1) Is it impossible to comply simultaneously with the pesticide by-law and with the federal PCPA or the Ontario Pesticides Act?; (2) Does the by-law frustrate the purpose of Parliament or the Ontario legislature in enacting those laws? If the answer to both questions is "no," then the by-law is effective.

[36] Therefore, in order to determine whether the Licensing By-law conflicts with a provincial statute, the following inquiries must be made:

a. Is it impossible to comply simultaneously with the Licensing By-law and the superior legislation? and;
b. Does the Licensing By-law frustrate the purpose of the Ontario Legislature in enacting the superior legislation in issue?

[37] If the answer to either question is “yes”, the Licensing By-law conflicts with superior provincial legislation and is without effect to the extent of any conflict.

..

[54] I note also that as a matter of statutory interpretation, courts should attempt to interpret two potentially conflicting pieces of legislation in a way that avoids a conflict. In Brantford (City) Public Utilities Commission v. Brantford (City), (1998) 1998 CanLII 1912 (ON CA), 36 O.R. (3d) 419, the Ontario Court of Appeal said at para. 27:

In dissolving the Public Utilities Commission and establishing the Hydro-Electric Commission the City was not exercising any of the powers given to municipalities by Bill 26. More importantly, in my view, the exercise of those powers did not conflict with s. 210.4 or the regulations. In approaching this issue it is important to bear in mind a fundamental principle of statutory construction that courts should attempt to avoid finding a conflict between two pieces of legislation. Anglin J. expressed this principle in The Toronto Railway Company v. Paget (1909), 1909 CanLII 10 (SCC), 42 S.C.R. 488 at p. 499:
• It is not enough to exclude the application of the general Act that it deals somewhat differently with the same subject-matter. It is not "inconsistent" unless the two provisions cannot stand together.

[55] The Applicant asserts that there is a possible conflict between the Licensing By-law and the RTA. If a license is refused or revoked under the Licensing By-law, it may be impossible for the landlord to evict the tenant in a way that complies with the RTA. However, if the landlord does not evict the tenant then they will be violating the Licensing By-law. The Applicant asserts that a conflict may arise if the failure to get a license results in a tenant eviction.

[56] The Applicant points out s. 37 of the RTA, which provides that: a tenancy may be terminated only in accordance with this Act. However, s. 2.2 and 2.4 of the Licensing By-law provide, respectively, that no person shall operate a Rental Unit without holding a current valid license or while their license is under suspension.

[57] The Licensing By-law does not discuss what happens to the tenant in a scenario where a license is either refused or revoked. The Applicant points to Ms. McLaren’s and Mr. Angelini’s circumstances where the License Manager asserted the Rental Unit was illegal and could not be rented. Assuming that a refusal to grant, or a revocation of, a license renders the tenancy at an end the Applicant submits that there is an operational conflict between the statutes.

[58] However, I am not satisfied that dual compliance is not possible or that the RTA is frustrated. For example, if a license is not granted because of a failure to meet Building Code standards, the landlord may properly evict the tenant under s. 50 of the RTA in order to undertake repairs to the rental property.

...

[62] However, I cannot accept this argument by the Applicant. The Licensing By-law contains no provisions which evict tenants. I disagree with the Applicant’s submission that the Licensing By-law creates a new ground for termination of a tenancy not found in the RTA. The penalty for failing to comply with a Licensing By-law is the potential of a fine or a finding of contempt. The penalty section of the Licensing By-law provides for the imposition of a fine for contravening any provision of the Licensing By-law and s. 10.5 provides that the court which enters a conviction and any court of competent jurisdiction thereafter may make an order prohibiting the continuation or repetition of the offence (that is operating without a license) and requiring the person to correct the contravention in the manner and within the period that the court considers appropriate.


[3] [4]

Jemiola v. Firchuk (2005) O.J. NO.6085 (Divisional Court)[5]

13 We are satisfied that there was evidence before the Tribunal that entitled it to conclude that an implied tenancy agreement did not arise between the appellant and the landlords. The Member was not prepared to characterize the single payment of rent and the July letter as amounting to an agreement to create a tenancy. The landlord and his agents acknowledged that Mr. Jemiola was living in the unit, but the legislation does not prohibit tenants from having room-mates, family and friends living with them. The Member found, correctly in our view, that this does not necessarily confer on them the status of tenant.

[5]

SOT-78396-17 (Re), 2017 CanLII 48994 (ON LTB)[6]

32. While the tenancy agreement provides that there will be no overnight guests except by permission of the landlords, I find that such term offends the Residential Tenancies Act, 2006. The Tenants have every right to invite guests in the unit, as part of their reasonable enjoyment of the unit. The Landlords cannot prohibit the Tenants from having invited guests at their unit, or they run afoul of Section 22 of the Act. Paragraph 12 of the tenancy agreement which prohibits overnight guests except by permission of the Landlord, is void, as the parties cannot contract out of the Act. I find that the Landlords substantially interfered with the Tenants’ reasonable enjoyment by prohibiting them from having invited guests stay overnight at the unit, and by confronting them about ST being in the unit.

[6]

TET-67453-16-RV (Re), 2016 CanLII 72233 (ON LTB)[7]

12. The Tenant says that on February 4, 2016, she woke up to the sounds of screaming related to a fight between one of the other tenants and her boyfriend. She says that she immediately texted SH to notify him that she “felt unsafe” in the house and that she wanted him to “do something” about the boyfriend. The Tenant did not produce a copy of this text.

13. SH says that he vaguely remembers receiving a text on February 4, 2016, from the Tenant, but it only reported to him that the other tenant had a guest staying in her unit who was not paying rent. SH says that he is sure that the text said nothing about the Tenant feeling “unsafe” or he would have done something about it.

14. SH says that he thinks he responded to the Tenant’s text and advised her that he would contact the other tenant to discuss the matter. He too could not provide the Board with a copy of any texts from February 4, 2016. He says that he thinks he called the other tenant and reminded her that the tenancy agreement states overnight guests are not allowed for more than three consecutive days. SH showed us a text saying something like this at the hearing but it was sent well after the incident of February 22 or 23, 2016.

16. We would note at this point that a tenant is entitled to reasonable enjoyment of the rental unit and limiting a tenant’s right to overnight guests arbitrarily is arguably a breach of that right. Tenants are entitled to have overnight guests on as many nights as they wish until and unless it somehow interferes with the rights of other tenants or the landlord.

17. The problem is that the parties’ evidence with respect to what happened prior to February 22 or 23, 2016, is in essence a he-said-she-said contest with little to choose between them. In such a scenario, the claim of the person who bears the burden of proof must always fail because the onus is on them to lead sufficient evidence to establish that their version of events is more likely than the other person’s.

18. Given the evidence described above, we find that the Tenant has failed to meet her burden of proof with respect to what happened prior to February 22 or 23, 2016. The application shall be dismissed accordingly.

[7]


Fraser v. Beach, 2005 CanLII 14309 (ON CA)[8]

[13] The neighbours submit that the Superior Court's order that the tenants vacate the premises was simply the method of enforcing its earlier order restraining the landlords from operating the illegal rooming house. The earlier order is not attacked. They say it does not make sense to read the Tenant Protection Act as taking away the rights of governments and private persons simply because they are neither landlords nor tenants. They submit that the activities of residents of an illegal [page387] rooming house may affect the health and safety of neighbours, and that persons so affected must have a remedy. Likewise, a city must be able to enforce its by-laws. It cannot be the case, they say, that a landlord can continue to operate an illegal rooming house in flagrant contravention of the by-law while a city remains powerless to do anything about it. (In this case, the city is not a participant in the proceedings.)

[14] I do not accept these submissions. The following provisions of the Act are of central importance. Section 39(1) provides "A tenancy may be terminated only in accordance with this Act." These words could not be more unequivocal. Moreover, s. 41(b) provides: "A landlord shall not recover possession of a rental unit subject to a tenancy unless ... an order of the Tribunal evicting the tenant has authorized the possession." Section 157(2) provides "The Tribunal has exclusive jurisdiction to determine all applications under this Act and with respect to all matters in which jurisdiction is conferred on it by this Act." Finally s. 2(1) provides that the Tenant Protection Act applies with respect to rental units in residential complexes "despite any other Act" and s. 2(4) specifies that if a provision of the Tenant Protection Act conflicts with a provision of another Act (other than the Human Rights Code, R.S.O. 1990, c. H.19), the provision of the Tenant Protecti on Act prevails.

[15] I am satisfied that the combined effect of these provisions is to oust the jurisdiction of the Superior Court to make an order requiring the tenants to vacate the premises. The statute clearly provides that only the Tribunal may make an order terminating a tenancy and evicting a tenant.



[8] [9] [10] [11]

References

  1. 1.0 1.1 CEL-43284-14 (Re), 2014 CanLII 61453 (ON LTB), <https://canlii.ca/t/gf1f2>, retrieved on 2021-10-29
  2. 2.0 2.1 TSL-80995-17 (Re), 2017 CanLII 28549 (ON LTB), <https://canlii.ca/t/h3qzb>, retrieved on 2021-10-29
  3. 3.0 3.1 London Property Management Association v. City of London, 2011 ONSC 4710 (CanLII), <https://canlii.ca/t/fnfcx>, retrieved on 2021-10-28
  4. 4.0 4.1 Croplife Canada v. Toronto (City), 2005 CanLII 15709 (ON CA), <http://canlii.ca/t/1kg3l>, retrieved on 2020-07-23
  5. 5.0 5.1 Jemiola v. Firchuk, 2005 CarswellOnt 7363, [2005] O.J. No. 6085, 144 A.C.W.S. (3d) 552, 206 O.A.C. 251, <https://rvt.link/e>, retrieved 2021-08-12
  6. 6.0 6.1 SOT-78396-17 (Re), 2017 CanLII 48994 (ON LTB), <http://canlii.ca/t/h532h>, retrieved on 2020-08-24
  7. 7.0 7.1 TET-67453-16-RV (Re), 2016 CanLII 72233 (ON LTB), <http://canlii.ca/t/gv97j>, retrieved on 2020-08-24
  8. 8.0 8.1 Fraser v. Beach, 2005 CanLII 14309 (ON CA), <http://canlii.ca/t/1k8v3>, retrieved on 2020-09-28
  9. Board v. Board, 1919 CanLII 546 (UK JCPC), <http://canlii.ca/t/g95vw>, retrieved on 2020-09-28
  10. Re Michie Estate and City of Toronto et al., 1967 CanLII 202 (ON SC), <http://canlii.ca/t/g1df4>, retrieved on 2020-09-28
  11. 80 Wellesley St. East Ltd. v. Fundy Bay Builders Ltd. et al., 1972 CanLII 535 (ON CA), <http://canlii.ca/t/g1b95>, retrieved on 2020-09-28