The state seemingly has a place in the bedrooms of the nation after all, but only if you call that bedroom a club.
In Mills v Corporation of the City of Calgary, 2024 ABKB 256, the Alberta Court of King's Bench was asked whether a City of Calgary bylaw which prevented the use of residential premises as "Social Organizations" was in breach of the Charter of Rights and Freedoms.
The provision of Calgary's Land Use Bylaw loosely defined a Social Organization as a location where members assembled to participate in recreational, social or cultural activities and events which may have rooms designated for food consumption and group administration.
Background
The Applicant owns a detached home in Silver Springs, a suburban residential neighbourhood of Calgary. It is a normal-looking home on the outside and an "ethical non-monogamous club" – more commonly known as a swingers' club – on the inside.
Beginning in 2010, the Applicant started hosting "groups of friends and like-minded travelers from the ethically non-monogamous community in his home." He hosted and advertised these gatherings under the name Club Ménage. The Applicant stated that the parties made no difference to the exterior of the house and no one outside the residence could see or hear what the partygoers were doing.
Obtaining invitations to the Club was not a secretive or exclusive venture. The Applicant operated a website and Instagram page advertising the Club's bi-monthly events and selling tickets for $30 each to cover expenses. The Applicant did not profit from this endeavour, he did so only to advance a non-monogamous lifestyle which was a core part of his sexual orientation.
The Club was successful, attracting between 20 and 50 individuals to each event. Seemingly suffering from success, the Club started to attract the attention of neighbours and, eventually, bylaw enforcement.
As a result, the City began an initial investigation in 2015 to determine whether the Applicant was conducting unlicensed business activities. The investigation did not reveal anything untoward and was resolved. However, City officials continued their investigation without the Applicant's knowledge. The second covert investigation resulted in the City issuing a Stop Order on the basis that the Applicant was operating a Social Organization without Developmental Authority and outside the accepted zoning use for the residence. The City claimed the Club was a Social Organization, the City essentially claimed that the Club was actually a "development" under s. 616(b) of the Municipal Government Act ("MGA") as it "changed the intensity of use of the land or building."
In response, the Applicant challenged the Stop Order arguing that it violated his rights under the definition of a Social Organization was impermissibly vague and an infringement on his rights to freedom of conscience, peaceful assembly and association under the Charter rights.
Social Organizations and vagueness
The Court found that the definition of a "Social Organization" in Calgary's Land Use Bylaws was not impermissibly vague. The definition creates a sufficiently clear picture of what is and what is not a Social Organization when considering its overall form and context.
The Court also provided a useful list of 14 factors to assist municipal regulators in determining whether activities at a residence constitute a "Social Organization" with the most important including:
- Are the invitations to join the group or activity public?
- Is the event openly advertised?
- Does a membership structure exist?
- Are membership fees charged?
- Do gatherings occur frequently and on a regular schedule?
Municipal regulators should not rely on a single factor in making their decision, however, the presence of many of these factors is indicative that a group is a Social Organization.
The Charter Issues
When assessing the Applicant's Charter arguments, the Court determined that the City's reliance on the Club being a Social Organization did not breach any of his Charter rights to freedom of conscience, peaceful assembly and association. Similarly, the enforcement provisions allowing municipal representatives to enter onto land do not constitute an unreasonable search under section 8 of the Charter.
Dealing first with a municipality's ability to enforce a Stop Order under s. 646 of the MGA, the Court concluded that the ability to "enter the land or building" to enforce the Order does not breach the right to be free from unreasonable searches. The Court made clear that the requirements placed on municipalities to provide reasonable notice and obtain the landowner's consent to enter, unless it has a Court order or it is an emergency, provide sufficient protections to landowners and do not breach their Section 8 Charter rights.
The Applicant also alleged that the City's Stop Order breached his right to freedom of conscience as he argued the Order was actually intended to punish the practice of ethical non-monogamy. The Court found that the land use restrictions do not limit his ability to practice ethical non-monogamy in his home, only that he cannot do so as a large club at his home. Nothing about restricting residential premises from operating as organized social clubs is in breach of Section 2(a) of the Charter.
Finally, the Applicant argued that the City's Land Use Bylaw is a breach of his right to peacefully assemble under the Charter, and interrelatedly, his right to freely associate. However, the Court concluded that the Land Use Bylaw did no such thing; nothing prevented the Applicant from operating the Club in an appropriately zoned venue. The rights guaranteed under the Charter do not guarantee the landowner an unbridled right to use their property however they please.
As a result, Justice Devlin dismissed his application. Justice Devlin noted in closing that this decision does not preclude the Applicant from continuing to engage in and host consensual non-monogamous gatherings, he just can no longer do so under the banner of the Club.
Key takeaways
- Municipalities are entitled to limit the use of residential properties as Social Organizations since nothing about this limit prevents a homeowner from hosting private social gatherings.
- Municipalities are entitled to enforce Stop Orders by entering the land or building of the owner, but they must be careful to ensure they are complying with the legislated requirements under s. 646 of the MGA.
- When issuing a Stop Order, municipalities must strive for consistent application of the relevant land use bylaws to avoid perceptions that they may be issuing the Order for moralistic or other improper reasons.
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