Municipal Bylaws (Residential Zone Restrictions)

Caselaw.Ninja, Riverview Group Publishing 2021 ©
Date Retrieved:	2024-11-26
CLNP Page ID:	1792
Page Categories:	[By-Laws], [Interference of Reasonable Enjoyment (LTB)], [Constitutional Law]
Citation:	Municipal Bylaws (Residential Zone Restrictions), CLNP 1792, <4V>, retrieved on 2024-11-26
Editor:	Sharvey
Last Updated:	2021/10/29

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

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), 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.

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

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.

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

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.

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

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.

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

[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.