Ontario Superior Court Rules City Zoning Bylaw Violated

The Neighbourhoods of Windfields Limited Partnership (“the Neighbourhoods”) and the City of Oshawa brought an application in the Ontario Superior Court of Justice against 43 homeowners in the Neighbourhoods of Windfields Farm subdivision (“Windfields”). These homeowners control a total of 33 Windfields properties, some as individual owners and others as part of syndicates.

The Neighbourhoods and the City alleged these homeowners were landlords operating their properties as lodging houses, contrary to City zoning bylaw 60-94, which permits only single detached dwellings in the R1 Windfields zone. The Neighbourhoods and the City claimed the houses were each being rented to four to nine students and others on short-term leases, creating land-use conflict.

The Neighbourhoods and the City sought a declaration that the landlords in question were in violation of bylaw 60-94 and an order that they cease and desist operating their properties in contravention of the zoning bylaw. The matter was heard March 17–19, 2008 in Whitby.

On April 27, 2008, Justice P.H. Howden granted the relief sought by the Neighbourhoods and the City. He found that 28 of the 30 properties remaining in the application (three landlords representing three properties settled prior to the hearing by reselling their houses to the Neighbourhoods) to be in violation of the bylaw and ordered their owners to conform to the requirements of the R1 zoning in Windfields. Justice Howden found insufficient evidence in respect of the two outstanding properties.

Key to Justice Howden's decision was his interpretation of the term “single housekeeping establishment,” the central feature of a single detached dwelling, as defined in the bylaw. Justice Howden found that a “single housekeeping establishment” in the context of the bylaw generally means a typical single-family arrangement or similar basic social unit.

Justice Howden distinguished prior case law that, in the context of licensing of lodging houses, interpreted the term “single housekeeping establishment” to refer to collective decision making and the internal functioning of a property. Rather, as a zoning matter, and particularly in the context of a bylaw designed to distinguish between lodging houses and single detached dwellings on the basis of intensity of use, “single housekeeping establishment” refers to the way land is used in relation to the surrounding community.

Given that zoning bylaws favour the public good over private rights, a “single housekeeping establishment” is fundamentally inconsistent with what are essentially commercial properties being rented to groups of individuals bound together by only their common need for economical short-term accommodation.

That the houses in question were advertised by the landlords as “student housing,” had been modified to accommodate additional tenants (without building permits or with building permits containing false declarations of purpose) and in some cases were insured as commercial properties further confirmed their use as lodging houses rather than single detached dwellings.

The Neigbourhoods was represented by McCarthy Tétrault LLP with a team that included Jonathan Lisus and Paul Fruitman (litigation) with John Dawson (real property & planning). David Potts represented the City. Michael Head and Kyle Armagon of Walker Head represented 13 responents. Barry Evans represented 10 respondents. John Montgomery of Johnson Montgomery represented two respondents. Eighteen respondents were self-represented.

Lawyer(s)

John A.R. Dawson Paul Fruitman Jonathan C. Lisus