Since Canadian planning legislation was revised to prohibit
zoning based on relationship, municipalities, developers and courts
have sought to find the dividing line between zoning bylaws
targeting "use" and those targeting "users." A
decision of the Ontario Superior Court of Justice, affirmed by the
Court of Appeal for Ontario, and from which leave was recently
refused by the Supreme Court of Canada, explains that zoning based
on how occupants relate to each other in their use of a building is
a permissible use of the zoning power.
The Neighbourhoods and the City alleged that these homeowners
were operating their properties as lodging houses, contrary to the
City zoning bylaw, which permits only single detached dwellings in
the lowest density residential zones.
The Neighbourhoods and the City claimed that these houses were
each being rented to four to nine college/university students and
others on short-term leases, creating land-use conflict in the
The Ontario Superior Court of Justice found 28 of the 30
properties remaining in the Application (three landlords
representing three properties settled prior to the hearing) to be
in violation of the bylaw.
Key to the decision was the court's interpretation of the
term "single housekeeping establishment," the central
feature of a single detached dwelling, as defined in the bylaw. The
court found that a "single housekeeping establishment" in
the context of a zoning bylaw generally means a typical
single-family arrangement or similar basic social unit, and is
fundamentally inconsistent with commercial properties being rented
to groups of individuals bound together only by their common need
for economical short-term accommodation.
The Court of Appeal for Ontario affirmed the Superior
Court's decision in all respects, stating that Ontario's
Planning Act did not prohibit the Superior Court from
considering as a relevant factor how the renters related amongst
themselves when determining whether they constituted a "single
housekeeping establishment." The Supreme Court of Canada
refused an application for leave to appeal these decisions, as well
as a motion to intervene in the leave application by the Ontario
Human Rights Commission.
McCarthy Tétrault Notes
The Windfields decision distinguished prior case law
that, in the context of lodging house licensing, interpreted the
term "single housekeeping establishment" to refer to
collective decision-making and the internal functioning of a
property. As a zoning matter, "single housekeeping
establishment" refers to the way land is used in relation to
the surrounding community.
This decision will prove useful for municipalities seeking to
prevent land-use conflict in residential areas, in particular those
near instiutions such as colleges and universities that attract
transient populations. It will also aid private owners such as
condominium corporations seeking to prevent commercial use of
property zoned for long-term residential occupation.
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Russell v. Township of Georgian Bay provides a useful reminder of the fact that while municipal officials sometimes appear to hold all of the cards in disputes with home owners, that is not always the case.
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