Municipal Bylaws (Residential Zone Restrictions)

Caselaw.Ninja, Riverview Group Publishing 2021 ©
Date Retrieved:	2024-11-24
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 2024-11-24
Editor:	Sharvey
Last Updated:	2021/10/28

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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.