Court Information

Date: October 2, 2019

Court: Ontario Court of Justice, Brampton, Ontario

Judge: Quon J.P.

Trial Date: July 10, 2019

Judgment Date: October 2, 2019

Parties

Prosecutor: The Corporation of the City of Brampton

Defendants:

• Tasmin Chowdhury
• Shah Islam

Counsel:

• A. Patterson, prosecutor for the City of Brampton
• Tasmin Chowdhury and Shah Islam, both unrepresented

Charges

Both defendants are charged with the same two offences on separate informations (#6302 and #6303):

Count #1: On or about January 4, 2018, at 35 Delphinium Way, described as LOT 241, PLAN 43M1748, in the City of Brampton, Regional Municipality of Peel, the defendants did commit the offence of using or permitting the use of lands for purposes not permitted by sections 10.16, 13.4, and 3459 of City of Brampton Zoning By-law No. 270-2004, as amended; namely, a second dwelling unit, contrary to the Planning Act, R.S.O. 1990, c. P.13, section 67(1).

Count #2: On or about January 4, 2018, at 35 Delphinium Way, described as LOT 241, PLAN 43M1748, in the City of Brampton, Regional Municipality of Peel, the defendants did commit the offence of failing to register a Second Unit in a Two Unit House, contrary to City of Brampton Second Unit Registration By-law No. 87-2015, as amended, section 6.

Reasons for Judgment

1. Introduction

[1] Some homeowners in Brampton rent out part of their house to tenants to help pay their mortgage or for additional income. They either rent out a room while sharing the kitchen or bathroom with their tenant or they rent out a separate and self-contained dwelling unit in their house, such as a basement apartment that contains a bedroom, separate kitchen, and bathroom that does not have to be shared with the homeowner. In Brampton, as well as in many municipalities in Ontario, a house designated or zoned as a "single detached residential dwelling" can only have a separate and self-contained dwelling unit or apartment as a second residential dwelling unit, if that particular dwelling has been legally zoned to allow for a "second unit" and the homeowner has complied with any registration requirements with the municipal authorities for that "Two-Unit House" or two-unit residential dwelling, and the Two-Unit House complies with the applicable Ontario Fire, Building, Electrical Safety, and Plumbing Codes, as well as complying with the off-street parking requirements.

[2] Specifically, in the City of Brampton, Brampton's Zoning By-law No. 270-2004 and Brampton's Second Unit Registration Bylaw No. 87-2015 regulate and apply to homeowners who wish to establish "second units", such as basement apartments, in their residential houses. Second residential dwelling units are legally permitted to be established in detached, semi-detached and townhouse dwellings in Brampton, as long as they comply with the applicable zoning requirements and restrictions. But, in order to be legal, "second units" must also be registered with the City of Brampton Building Division. Moreover, the legal requirement for homeowners in Brampton to obtain a building permit for establishing a second unit and to also register their Two-Unit Houses with a second unit with the City of Brampton, as part of the legalization process of that second unit, allows the City of Brampton to inspect the Two-Unit residential dwelling and the second unit for compliance with Ontario's Fire, Building, Electrical Safety, and Plumbing Codes, and compliance with the Zoning By-law, which is for the protection of owners' and tenants' safety and health.

[3] Of the Brampton homeowners who do rent out second dwelling units contained in their homes, some ensure that their houses and "second units" do legally comply with the Ontario Planning Act, R.S.O. 1990, c. P.13, the City of Brampton Zoning By-law, the City of Brampton Second Unit Registration By-law, and with the off-street parking requirements, as well as ensuring that their homes and these second dwelling units in their homes also comply with the applicable Ontario Building, Fire, Electrical Safety, and Plumbing Codes, for the safety and well-being of themselves and their tenants. Unfortunately, there are many homeowners in Brampton, who do rent out separate and self-contained second dwelling units, such as basement apartments, in their homes to a tenant, without legally complying with the applicable statutes, by-laws, and Codes.[1] As a consequence of this unlawful activity of renting out illegal basement apartments or second dwelling units, where many of these illegal second dwelling units do not comply with the Ontario Fire, Electrical Safety, Plumbing, and Building Codes, there have been fires and even deaths in these illegal basement apartments or second dwelling units in the City of Brampton.[2] Moreover, many of these illegal basement apartments or second dwelling units have come to the attention of the City of Brampton because of complaints from neighbours, due to the over-crowded street parking of motor vehicles and the presence of numerous people living in homes that are being used as rooming houses. Unfortunately, some of these illegal basement apartments or second dwelling units are only discovered after a fire has actually occurred in that illegal basement apartment or second dwelling unit.

[4] In the present matter, the defendants, Tasmin Chowdhury and Shah Islam, have been both charged with committing the same two offences, as the registered owners on January 4, 2018, of a residentially-zoned property located at 35 Delphinium Way in the City of Brampton. One charge is for using or permitting the use of lands for purposes not permitted by ss. 10.16, and 13.4, and s. 3459 of Schedule A of City of Brampton Zoning By-law No. 270-2004, by having a second dwelling unit (an illegal basement apartment) in their house on January 4, 2018, which would be a contravention of s. 67(1) of the Planning Act, R.S.O. 1990, c. P.13; while the second charge is for failing to register their Two-Unit residential house containing a second dwelling unit with the City of Brampton, which would be a contravention of s. 6 of Brampton's Second Unit Registration By-law No. 87-2015.

[5] The defendants' charges arose as a result of Richard Mohammed, a City of Brampton Property Standards Officer, attending and being permitted to inspect the interior of the defendants' house at 35 Delphinium Way on January 4, 2018, in respect to a complaint made on December 6, 2017, about an illegal lodging house or an illegal basement apartment at that particular address. During his inspection of the defendants' house on January 4, 2018, Property Standards Officer Mohammed testified that he did observe a self-contained basement apartment with bedrooms, a kitchen and a bathroom in that particular house. Consequently, Property Standards Officer Mohammed charged both Tasmin Chowdhury and Shah Islam separately on March 14, 2018, with committing those two offences in respect to that impugned "second unit".

[6] Furthermore, the prosecution contends that on January 4, 2018, there had indeed been two separate and self-contained residential dwelling units in the house at 35 Delphinium Way, which was not a legally authorized "use" for that particular house. In other words, the City of Brampton Building Division had not authorized the defendants' house to be legally used as a Two-Unit House containing a second unit, since the defendants' house had been only zoned for "use" as a "single detached residential dwelling" under s. 13.4.1(a) of Brampton Zoning By-law No. 270-2004. In addition, the prosecution further contends that the defendants had also on January 4, 2018, failed to register their Two-Unit house containing a second unit with the City of Brampton that is legally required under s. 7 of the City of Brampton's Second Unit Registration By-law No. 87-2015.

[7] In their defence, the defendants contend that there had not been a separate second residential dwelling unit in their house at 35 Delphinium Way on January 4, 2018, because there was no stove in the basement and that the defendants themselves had been living in the basement while no one else had been living on the main floor and upstairs of the house. In addition, the defendants submit that they had only warmed up food in a microwave appliance in the basement kitchen. Moreover, the defendants contend that even if there had been a tenant residing in their house, the house would have been shared with the tenant.

[8] Therefore, in order to prove both of the defendants' respective charges, does the prosecution have to prove that there is an actual tenant residing in the defendants' house on January 4, 2018, in order for the prosecution to prove beyond a reasonable doubt that the defendants had a Two-Unit house with a separate self-contained second dwelling unit in their house at 35 Delphinium Way? In addition, does the prosecution have to prove that there is a stove in the basement in order to prove that there is a separate self-contained second dwelling unit or basement apartment in the defendants' house? As well, it will also have to be decided whether there is a self-contained second dwelling unit in the basement of the defendants' house in the circumstance where it had been the defendants who had resided in the basement of their house and not a tenant, and whether homeowners residing in the contended second unit of a house is relevant in deciding whether there is the existence of a second unit in the defendant's house. Moreover, if the defendants were in fact renting out part of their house to a tenant, were the defendants and the tenant in the circumstances simply sharing the entire house and not indeed living in two separate self-contained residential dwelling units on January 4, 2018, respectively?

[9] Consequently, after considering the governing legislation, the totality of the evidence and the circumstances of this case, the prosecution is not required to prove that there is an actual tenant residing in the defendants' house on January 4, 2018, to prove either of the two counts. For the Zoning By-law charge in count #1, the prosecution only has to prove that there are "two residential dwelling units" in the defendants' house to prove the house was being unlawfully used on January 4, 2018 as "Two-Unit House" to prove the offence in count #1. And for the Second Unit Registration By-law charge in count #2, s. 7 of Brampton Second Unit Registration By-law No. 87-2015 only requires homeowners to register their "Two-Unit House" with the City of Brampton if they have "established a second unit" or "operated a second unit" or "permitted to be occupied a second unit" in their house. Therefore, to prove the offence in count #2, the prosecution needs to only prove one of those three alternate circumstances had occurred. In this case, the prosecution has proven beyond a reasonable doubt that a "second unit' has been physically "established" in the defendants' house to make the defendants' house a Two-Unit House containing a second unit, which is one of the circumstances under s. 7 of Brampton Second Unit Registration By-law No. 87-2015, that legally obligates or requires the defendants to register their Two-Unit House containing the second unit with the City of Brampton.

[10] Moreover, for the circumstances of this case, the prosecution can prove that both of the defendants had committed the offences in the two counts by proving the physical existence or presence of a "second unit" in the defendants' house without having to necessarily prove that a tenant had been actually residing in that second unit in order to establish the existence of a "second unit" in the house. On the other hand, in other circumstances, it may be necessary for the prosecution to prove the existence of tenant in order to establish the other two alternate circumstances set out under s. 6 of the City of Brampton's Second Unit Registration By-law No. 87-2015 of "operating a second unit" or "permitting the occupation of a second unit".

[11] In addition, the absence of a stove in the basement kitchen does not mean that there is no second self-contained residential dwelling unit in the basement, since there were small electrical appliances present in the kitchen in the basement which could be used to prepare meals, as well as the existence of an electrical plug installed in the basement kitchen where a stove could be easily brought in and hooked up. Furthermore, even though there was evidence on January 4, 2018, that the defendants were residing in the basement and that no one else was residing on the main floor or second floor of the defendants' house, the door leading to the basement from the main floor could not be opened from the main floor side and getting down into the basement could only be done through the door leading to the basement that is located in the garage and which is only accessible by going through the garage. This is further evidence that a self-contained second residential dwelling unit had been established in the basement of the defendant's house, which could then be used to accommodate tenants either in the basement or on the main floor and second floor of the house, as two separate self-contained residential dwelling units.

[12] Moreover, by closing off or making the door leading to the basement that is located on the main floor of the house inaccessible for entry into the basement by someone on the main floor, and that entrance into the basement could only be gained by using the door leading into the basement that is located inside the garage and which can only be accessible by going through the garage, is not evidence of or indicative of the defendants sharing the house with a tenant on January 4, 2018. On the other hand, it is indicative of the defendants establishing a self-contained "second unit" or basement apartment in the basement of their house.

[13] Furthermore, on the issue of the defendants occupying the basement apartment or second unit and whether that would still make the basement apartment a "second unit", the answer is the same as the question on whether the prosecution has to prove the existence of a tenant in order to establish the existence or presence of a second unit. Once more, the prosecution needs to only prove that a second self-contained residential dwelling unit has been physical "established" in a house zoned as a single residential dwelling unit in order to prove the existence of a "second unit". Moreover, the Planning Act, R.S.O. 1990, c. P.13, does not permit zoning and legal use to be dependent on or distinguished by whether the homeowners reside in the principal unit or reside in the second unit of a Two-Unit House or dependent on the relationship between the homeowner and the people residing in the second unit of a Two-Unit House. So, whether the homeowner is residing in the second unit or residing in the principal unit of the house does not matter as the "use" of the house would still be that of a "Two-Unit House" containing a second unit which is not permitted under the Brampton Zoning By-law 270-2004, for a house that is zoned for use as a "single residential dwelling unit". Moreover, the same public safety, health, and livability concerns about an illegal second unit or basement apartment not being in compliance with the Ontario Building, Fire, Electrical, and Plumbing Codes would still be present whether the homeowner resides in the second unit or the principal unit of the house.

[14] Ergo, based on the totality of the evidence, the prosecution has proven beyond a reasonable doubt that there is contained in the defendants' house at 35 Delphinium Way on January 4, 2018, a self-contained basement apartment with a kitchen for preparing meals, a bathroom for sanitary purposes and rooms for sleeping, which is a "second unit" within the meaning of Brampton Zoning By-law No. 270-2004 and Brampton Second Unit Registration By-law No. 87-2015. Moreover, this is evidence that proves beyond a reasonable doubt that the defendants had committed the offence set out in count #1 of their respective informations of using or permitting the use of lands for purposes not permitted under ss. 10.16 and 13.4, and s. 3459 of Schedule A of Brampton Zoning Bylaw No. 270-2004 on January 4, 2018, by having improperly "established" a second residential dwelling unit in their house which had been only zoned for use as a single detached residential dwelling, and as such the defendants have contravened s. 67(1) of the Planning Act, R.S.O. 1990, c. P.13.

[15] And, because the defendants' house is a Two-Unit House with a second unit (self-contained basement apartment) the defendants were legally required to register their Two-Unit house with the City of Brampton Building Division by virtue of s. 7 of the Brampton Second Unit Registration By-law No. 87-2015, and because the prosecution has proven beyond a reasonable doubt that they had failed to do so on January 4, 2018, then both defendants have respectively committed the offence set out in count #2 of their respective informations, of failing to register their Two-Unit House containing a second unit, contrary to s. 6 of Brampton's Second Unit Registration By-law.

[16] The trial of Shah Islam's and Tasmin Chowdhury's respective charges had been held on July 10, 2019. Both defendants, Tasmin Chowdhury and Shah Islam, were present for the trial. Three witnesses had testified in the trial: two for the prosecution and one for the defence. The prosecution's two witnesses were Richard Mohammed, the City of Brampton Property Standards Officer, who had investigated and laid the charges against the defendants, and Todd Payne, a Zoning Plans Examiner for the City of Brampton, who had explained which sections of Brampton's Zoning By-law applied to the defendant's property at 35 Delphinium Way. For the defence, Shah Islam, one of the defendants, had testified at the trial.

[17] After final submissions were made by both the prosecution and the defence on July 10, 2019, judgment was reserved and adjourned to October 2, 2019 for judgment. These, therefore are the written reasons for judgment:

2. The Charges

[18] The defendant Tasmin Chowdhury's charges are as follows:

CHOWDHURY, Tasmin 35 Delphinium Way Brampton Ontario, L7A 0N4

Count #1 on Information #6302:

On or about the 4th day of January, 2018, at 35 Delphinium Way, described as LOT 241, PLAN 43M1748, in the City of Brampton, Regional Municipality of Peel, did commit the offence of using or permitting the use of lands for purposes not permitted by section(s) 10.16, 13.4, and 3459 of By-law 270-2004, as amended; namely, a second dwelling unit, contrary to the Planning Act, R.S.O. 1990, c. P.13, section 67(1).

Count #2 on Information #6302:

AND FURTHER THAT

CHOWDHURY, Tasmin on or about the 4th day of January, 2018, at 35 Delphinium Way, described as LOT 241, PLAN 43M1748, in the City of Brampton, Regional Municipality of Peel, did commit the offence of failing to register a Second Unit in a Two Unit House, contrary to City of Brampton By-law 87-2015, as amended, section 6.

[19] And for the defendant, Shah Islam, his charges are as follows:

ISLAM, Shah 35 Delphinium Way Brampton Ontario, L7A 0N4

Count #1 on Information #6303:

On or about the 4th day of January, 2018, at 35 Delphinium Way, described as LOT 241, PLAN 43M1748, in the City of Brampton, Regional Municipality of Peel, did commit the offence of using or permitting the use of lands for purposes not permitted by section(s) 10.16, 13.4, and 3459 of By-law 270-2004, as amended; namely, a second dwelling unit, contrary to the Planning Act, R.S.O. 1990, c. P.13, section 67(1).

Count #2 on Information #6303:

AND FURTHER THAT

ISLAM, Shah on or about the 4th day of January, 2018, at 35 Delphinium Way, described as LOT 241, PLAN 43M1748, in the City of Brampton, Regional Municipality of Peel, did commit the offence of failing to register a Second Unit in a Two Unit House, contrary to City of Brampton By-law 87-2015, as amended, section 6.

3. Background

[20] The defendants, Shah Islam and Tasmin Chowdhury, were the registered owners of a property zoned for residential use that is located at 35 Delphinium Way in the City of Brampton on January 4, 2018 (see Exhibit #4). The house on their property is a two-storey house with a garage. The defendants had purchased the house at 35 Delphinium Way on September 18, 2008 (see Exhibit #4 and Exhibit #11) directly from the builder, Paradise Homes Mayfield Inc. It was a new house at the time the defendants had purchased it and they were the first homeowners to have occupied the 35 Delphinium Way house. As such, this is not a situation where the defendants had indicated that they had purchased the house with an already existing basement apartment that had contained bedrooms, a kitchen, and a washroom. However, on October 14, 2018, approximately 9 months after the charges were laid, the defendants sold their house at 35 Delphinium Way to new homeowners. But, on the offence date of January 4, 2018, the defendants, Shah Islam and Tasmin Chowdhury, were still the registered owners of the 35 Delphinium Way house (see Exhibit #4).

[21] In addition, the house at 35 Delphinium Way is a single detached residential dwelling. And, according to Exhibit #11, 35 Delphinium Way is classified under the City of Brampton Zoning By-law No. 270-2004, as the following:

Zone Code: R1E-12.4-3459 Category: RESIDENTIAL Type: R1E Special Sec: 3459 Split Zoned: NO

[22] Furthermore, s. 10.16 of Brampton Zoning By-law No. 270-2004, permits basement apartments or second dwelling units to be established and constructed in a single detached residential dwelling according to its provisions. The defendants' house is a single detached residential dwelling and is zoned where a legal second unit could be established.

[23] In respect to charges laid against both defendants in regards to their house at 35 Delphinium Way, Property Standards Officer Richard Mohammed had been assigned to inspect the house to determine if the house had an illegal second unit or whether it had been operating as an illegal lodging house, due to a complaint received by the City of Brampton on December 6, 2017. According to Property Standards Officer Mohammed, before he actually went to the house at 35 Delphinium Way, he said he had checked their computerized database system to determine if that house had been registered with the City of Brampton as a legal Two-Unit house, which is legally required under City of Brampton Second Unit Registration By-law No. 87-2015. Mohammed said that 35 Delphinium Way had not been registered as a Two-Unit house. Mohammed had also said that on the date the defendants were charged on January 4, 2018, the City of Brampton's computerized database also did not indicate that 35 Delphinium Way was registered with the City of Brampton as a Two-Unit house.

[24] On December 7, 2017, Property Standards Officer Mohammed made his first visit to 35 Delphinium Way, where he had observed a motor vehicle on the front driveway. He said he had also knocked on the front door, but that no one had answered the door. Mohammed then left his business card and an "Access Notice" (Exhibit #5) on the front door advising the homeowners, Shah Islam and Tasmin Chowdhury, that they should call or contact him about the second unit or lodging house complaint in respect to the 35 Delphinium Way property. The "Access Notice" indicated that the homeowners had 7 days to contact him.

[25] After several more attendances by Property Standards Officer Mohammed at 35 Delphinium Way on December 15 and December 28, 2017, and attempts by Mohammed to speak to the homeowners of 35 Delphinium Way had been made, Shah Islam, one of the registered owners of the property, had called Mohammed on January 3, 2018, and arranged an appointment for Property Standards Officer Mohammed to attend at 35 Delphinium Way on January 4, 2018.

[26] On January 4, 2018, Property Standards Officer Mohammed attended 35 Delphinium Way and met with both the registered homeowners, Shah Islam and Tasmin Chowdhury. Mohammed said he had first informed both of the registered homeowners that they did not have to allow Mohammed to enter their house and that he had been there to investigate the complaint that there was an illegal second unit in their house or that the house was being used as a lodging house. Mohammed also cautioned them that their statements to Mohammed could be used in court. The homeowners then permitted Mohammed to enter the house and view the interior of the house. Mohammed then said he had looked at all the rooms on the main floor, second floor, and in the basement of the house, and that he had also taken photographs of the different rooms and doors in the house. Mohammed said he had taken about 46 photos altogether.

[27] After Property Standards Officer Mohammed had completed his inspection and investigation of the house at 35 Delphinium Way, Mohammed had decided, based on what he had observed, to charge Shah Islam and Tasmin Chowdhury, as the registered owners of 35 Delphinium Way with committing two offences each. The two separate charges are the same two charges for both defendants for the offence date of January 4, 2018, in respect to the property they had jointly owned at 35 Delphinium Way in the City of Brampton. Separate informations in respect to each individual homeowner were then sworn on March 14, 2018. Tasmin Chowdhury's two charges were set out in Information #6302, while Shah Islam's two charges were set out in Information #6303.

[28] For the first count on each of these two Informations, the two registered homeowners were separately charged with committing the offence of using or permitting the use of lands for purposes not permitted by ss. 10.16 and 13.4, and s. 3459 of Schedule A of Brampton Zoning By-law 270-2004, by improperly using their house as a Two-Unit House containing a second dwelling unit, which would be contrary to s. 67(1) of the Planning Act, R.S.O. 1990, c. P.13.

[29] And, for the second count on each of the two Informations, the two registered homeowners were separately charged with committing the offence of failing to register a Second Unit in a Two Unit House, contrary to s. 6 of City of Brampton By-law 87-2015, as amended.

[30] Summonses were also issued by the Ontario Court of Justice on March 14, 2018, to Shah Islam and Tasmin Chowdhury, notifying them that they had to both appear in court on July 18, 2018, in respect to the present charges. And, according to the Affidavit of Service of Summons, both summons had been served on April 10, 2018, upon Joel Uhunmwagho a tenant at 35 Delphinium Way, Brampton, by P. Martin #7210, a provincial offences officer. However, the statement in the two Affidavits of Service for both of the summonses from the process server which had stated that the two summonses had been served on a tenant on March 14, 2018, is not evidence that there had been a tenant residing at 35 Delphinium Way on January 4, 2018.

4. Summary of Testimony for the Prosecution's Witnesses

(1) Testimony of Richard Mohammed, a Property Standards Officer for the City of Brampton

[31] Richard Mohammed testified that he is a Property Standards Officer for the City of Brampton and has been with the City of Brampton in that capacity since 2015.

[32] In respect to 35 Delphinium Way in Brampton, Property Standards Officer Mohammed said that he had first attended that residential property on December 7, 2017, because of a complaint made to the City of Brampton on December 6, 2017, about a lodging house or an illegal basement apartment being at 35 Delphinium Way. Property Standards Officer Mohammed also said that on December 7th he had observed a motor vehicle parked on the driveway and that he had knocked on the door, but that no one had answered, so he then left his business card and an Access letter on the front door of 35 Delphinium Way (see Exhibit #5). The Access letter had informed the owners of 35 Delphinium Way that they had 7 days or until December 14, 2017 to contact Property Standards Officer Mohammed in person or by telephone. The Access letter also notified the owners of the property that their property was in possible contravention of City of Brampton Zoning By-law No. 270-2004 for either having an illegal second unit or that their house was being used as a lodging house.

[33] As the owners of 35 Delphinium Way did not contact him during those 7 days, Property Standards Officer Mohammed then re-attended 35 Delphinium Way on December 15, 2017. Again, he said he had knocked on the door, but no one had answered the door. So, he then said he had left a second business card and another Access letter on the front door of 35 Delphinium Way (see Exhibit #6). The new Access letter had also informed the homeowners that they had to contact Mohammed within 7 days of December 15. Again, Mohammed said that no one had contacted him within those 7 days.

[34] Then, on December 28, 2017, Property Standards Officer Mohammed said he had attended 35 Delphinium Way for a third time. He said that he had again knocked on the door and had received no answer. He then placed his business card and another Access Letter on the front door (see Exhibit #7). He also said he had observed on that day that the garage door was slightly open and that a garbage bin had been placed at the curb at the front of the property.

[35] A few days later, on January 3, 2018, Property Standards Officer Mohammed then said that Shah Islam, one of the registered homeowners of 35 Delphinium Way, had contacted him by telephone, and a visit at 35 Delphinium Way was arranged and scheduled between them for January 4, 2018.

[36] On January 4, 2018, Property Standards Officer Mohammed attended 35 Delphinium Way and met with both the registered homeowners, Tasmin Chowdhury and Shah Islam. Mohammed had also said that he had been given permission by the homeowners to access and enter the house after he had informed them that they had the right to refuse him access. Furthermore, Mohammed said that he had cautioned the homeowners and that they had understood his caution, that if there was evidence of a second unit that they could be charged with an offence. After being granted access to the house at 35 Delphinium Way, Mohammed said he took 46 photographs of the inside and outside of the house (see Exhibit #8).

[37] Property Standards Officer Mohammed also said he had concluded that there was a "second unit" at 35 Delphinium Way that was a separate self-contained unit or apartment in the basement of the house, which had been based on Mohammed observing locked doors separating the basement apartment from the main floor and upstairs part of the house and because he had observed sleeping quarters, cooking appliances, and bathing or washing facilities in the basement, as well as there being a separate kitchen on the main floor and bedrooms and a bathrooms on the second floor of the house. Furthermore, Mohammed said that the primary unit in the house was on the main floor.

[38] Based on his observations that he made of the house at 35 Delphinium Way that day, Mohammed said he had concluded that there was evidence of two units at this property and that the house had not been registered with the City of Brampton as a Two-Unit House, so Mohammed then proceeded to lay charges against both of the registered homeowners in respect to that apparent second unit at 35 Delphinium Way.

[39] In addition, Property Standards Officer Mohammed said he had attended at 35 Delphinium Way on a fifth occasion on July 13, 2018, for a compliance check. Mohammed also said he had taken four photographs that day of a vehicle in the driveway and the open windows on the second floor, of his business card that he placed on the front door that day, of the north side of the house, and of the south side of the house (see Exhibit #9).

[40] Furthermore, Property Standards Officer Mohammed said that he had attended 35 Delphinium Way on a sixth occasion on October 11, 2018, for another compliance check and had also taken four photographs that day of discarded furniture and other things on the boulevard area at the front of the house, of the two cars in the driveway that he had not seen before on the driveway at that house and their licence plates, and of his business card that he had placed on the front door (see Exhibit #10). Mohammed also said that he had a conversation with someone at the house who had informed Mohammed that they were the new homeowners and that the sale and transfer of the house had occurred the previous day, and that they had just moved in and had emptied the house of the furniture left behind.

[41] Property Standards Officer Mohammed also said that before he made his first visit on December 7, 2017, to 35 Delphinium Way, he had accessed the City of Brampton computer system known as "Amanda" to determine if the property at 35 Delphinium Way, Brampton had been registered by the homeowners as a two-unit dwelling house. Mohammed also said that the "Amanda" system commenced being used in 2007 and that if the property at 35 Delphinium Way had been registered as a two-unit dwelling house, then it would be in the "Amanda" system. Mohammed also said that he had checked the system that had been used before 2007 and that his search of both systems did not reveal that the property at 35 Delphinium Way had been registered as a two-unit dwelling house. In addition, Mohammed said he had checked the "Amanda" system after each of his visits to 35 Delphinium Way to see if the homeowners had actually registered the property as a two-unit dwelling house. Mohammed then said that the house at 35 Delphinium Way had not been registered with the City of Brampton Building as a two-unit dwelling house up to the date of the trial.

[42] In addition, Mohammed said that if the defendant had applied for a building permit for their second dwelling unit, then that action would have also been recorded in the "Amanda" system.

[43] Furthermore, Mohammed said he had sent the defendants a registered "Access" letter. Mohammed also said that for an open investigation it had been their department's standard operating procedure to post a business card and an "Access" letter on the front door on each occasion in which there was a visit and there had been no response from anyone inside the house to his knock on the front door.

[44] Moreover, Mohammed said that he had never met either of the two defendants before the investigation began on December 7, 2017, and that he had no previous knowledge about the property at 35 Delphinium Way, nor had he been aware of any previous dealings the defendants had had with the City of Brampton.

[45] Furthermore, when challenged by the defendant about the seemingly excessive number of photographs Mohammed had taken at the defendants' house on January 4, 2018, Mohammed explained that he had taken a lot of photographs of the house because it was normal procedure for him to take photographs of the entire house as part of the investigation into the complaint that the defendant's house was being used as an illegal lodging house or that it had contained an illegal apartment. In addition, Mohammed said that as part of the caution Mohammed had given to the defendants, Mohammed had informed and explained the process to the defendants and that they understood that Mohammed would take photographs and make notes in respect to the entire house and that the defendants were entitled to refuse access to Mohammed. Mohammed also said the defendants did not raise any concerns about being uncomfortable or pose any questions during Mohammed's inspection of the house at 35 Delphinium Way. In addition, Mohammed said there is no limit on the number of photographs that he can take and that he had taken photographs of the house so that others could see afterwards what he had seen during the inspection.

[46] In regard to the tape that was on the door located on the main floor that led down into the basement, Property Standards Officer Mohammed said that the door would not open and that the tape was on the outside of the door and visible. Mohammed also said that when he had asked Shah Islam to open that particular taped door, Mohammed said that Shah Islam had been unable to open or unlock that door from the main floor side of the door. Furthermore, Mohammed said that in order for them both to get down into the basement, both Mohammed and Shah Islam had to exit the house and enter the garage in order to access and use the door leading down in the basement that was located in the garage.

[47] Property Standards Officer Mohammed also acknowledged during cross-examination that the defendants had indeed indicated to him that they were living in the basement of the house, but Mohammed emphasized that just because the homeowners were living in the basement of their house does not mean they can have locks on the door to the basement that is located on the main floor of the house. Furthermore, Property Standards Officer Mohammed had also confirmed in cross-examination that Shah Islam had told Mohammed that a tenant lived upstairs and that he and his wife lived downstairs in the house at 35 Delphinium Way.

(2) Testimony of Todd Payne, a Zoning Plans Examiner for the City of Brampton

[48] Todd Payne testified that he is a Zoning Plans Examiner for the City of Brampton and has been since October 2011.

[49] To determine the zoning for a specific property under the City of Brampton Zoning By-law, Payne said that he would enter the property's address into "Brampton GeoHub", their online system, and a report would be generated automatically detailing the particular zoning for that particular property. The zoning report that was generated for 35 Delphinium Way by Todd Payne on July 9, 2019, was then entered as Exhibit #11.

[50] As a result of that computer-generated zoning report, Payne said that according to p. 3 of that zoning report, 35 Delphinium Way is zoned as a residential, single detached dwelling. And, as indicated by Exhibit #11, the actual zoning code for 35 Delphinium Way under the City of Brampton Zoning By-law No. 270-2004 is "R1E-12.4-3459". Payne then explained that the first part of that particular zoning code of "R1E" refers to the parent zoning classification, while the second part of "12.4" refers to the minimum lot required, and the third part of "3459" refers to s. 3459 of the Zoning By-law, which is a special section that supersedes the information which is set out for the parent zone of "R1E".

[51] In addition, Payne said that any modifications to the zoning of 35 Delphinium Way would require re-zoning or a minor variation.

(3) Testimony of Shah Islam, one of the joint owners on January 4, 2018 of 35 Delphinium Way, Brampton

[52] Shah Islam testified that him and his wife had intended to make their basement legal, but did not have the finances to do so. He also said there is no door that has been cut through the thick concrete to make an entrance to the basement and that it had been impossible for them to make this type of entrance through the concrete, since it would cost them $10,000 to $20,000 to make that entrance. So, he said that they did not do the separate entrance to the basement.

[53] In addition, Shah Islam said that the basement at 35 Delphinium Way had been covered with drywall, there was piping for a toilet and a toilet had been set up. He also said there was drywall put up to make a washroom.

[54] Shah Islam also said there were two bedrooms and a storage room in the basement of their house and not three bedrooms as Property Standards Officer Mohammed has said he had observed in the basement.

[55] Moreover, Shah Islam said that for most of the time the basement was not occupied, but vacant because they were overseas.

[56] As for the door that existed between the first floor (main floor) and the basement, Shah Islam said that the door had been made by the builder and that he and his wife had only taped it with Scotch tape and that the last renter, a company named Vista Care Communication had rented the main floor of the house. Shah Islam also said that the accountant of Vista Care Communication, Joseph S. Shatilan, had wanted the basement separated from the main floor. However, Shah Islam said that neither the company nor Joseph S. Shatilan had actually moved in and that Shatilan had said that he would report the house to the City of Brampton. And shortly after that, Shah Islam said the inspector from the City had come to the house. In addition, Shah Islam said that there had been nothing in the main floor and second floor of the house before the City Inspector arrived, as the people from Vista Care Communication had taken out all the furniture the day before the inspector had come to the house. Also, Shah Islam said that they had actually shared the house with the renter.

[57] Shah Islam also said that he did not change the lock on the door and had tried to separate the basement from the main floor at a cheaper cost by putting tape on the door. He also said that the door from the main floor to the basement had been left unlocked and that Scotch tape had been placed on the door so that in case of fire, escape could then be made from the basement through that Scotch-taped door.

[58] Furthermore, Shah Islam said that when he and his wife had returned from being overseas they would share their house with whomever would be occupying their home. He also said that they would use the basement in the summer and use a microwave in the basement to reheat food and did not cook any meals in the basement. Furthermore, he also said that they had used the two-slice toaster, but did not use the rice cooker in the basement, since they would use the things located upstairs. [However, as seen by the photographs taken on January 4, 2018 (Exhibit #8) there were no plates, cutlery, or food items in the main floor kitchen or on the second floor of the defendants' house.]

[59] Furthermore, Shah Islam said he and his wife had bought the house at 35 Delphinium Way in 2008 and that in 2009 he had lost his job, and that by sharing his house with other people it had helped him pay part of his mortgage. He also said he had used his credit cards to make mortgage payments. Then in 2018, he said that he and his wife had decided to sell the house and that they are now homeless again and live with friends and family.

[60] In addition, Shah Islam said that he cannot understand how a door with tape on it and small appliances located in the basement would make or comprise two separate units in their house. Shah Islam also said there was no tenant on January 4, 2018, as Vista Care Communication had been there only for one week or so and that they had moved out and had removed the furniture before Property Standards Officer had attended their house on January 4, 2018.

(a) No air of reality to Shah Islam's claim that the charges were laid against the defendants as part of a larger conspiracy against him by the Government of Canada, the Province of Ontario, and the City of Brampton

[61] In his testimony, Shah Islam had tried to insinuate that there was a large conspiracy against him from the Government of Canada, the Province of Ontario, and the City of Brampton because he had been charged in 2009 with a criminal offence of impaired driving, that he had also been charged several times since 2009 for driving a motor vehicle on a highway without insurance, and now he and his wife had been charged with the present offences. However, as the defendants could not produce any credible or reliable evidence to support this insinuation of a larger conspiracy by government authorities against him and his wife, the defendants were not allowed to argue this defence, as there was no "air of reality" of a conspiracy by government authorities against him and his wife and that the impaired driving charge and driving without insurance charges were something that hundreds of people get charged with on a daily basis. Nor has there been any evidence presented at trial that would show Shah Islam or his wife, Tasmin Chowdhury, had been specifically targeted by any government authority for an illegitimate reason or without a reasonable legal basis.

(b) No air of reality to Shah Islam's claim that Property Standards Officer Mohammed had given out the defendants' personal telephone number to someone who had called Shah Islam about providing him services to legalize his basement apartment

[62] Shah Islam also suggested in his cross-examination of Property Standards Officer Mohammed that Mohammed had given Shah Islam's private telephone number to someone named Tony Stevens, who Shah Islam claims had called Shah Islam and had offered a service to legalize Shah Islam's basement apartment for a fee. To that suggestion, Property Standards Officer Mohammed vehemently denied knowing anyone named Tony Stephens and that he had not given the defendants' telephone number to anyone about legalizing his basement apartment. Moreover, the defendants also did not provide any credible or reliable evidence to prove these telephone calls had been made by someone named Tony Stevens to Shah Islam and that Property Standards Officer Mohammed had indeed given the defendants' private telephone number to someone who had called the defendants offering to help them legalize their basement apartment for a fee. Ergo, there is no "air of reality" to Shah Islam's claim or insinuation that Property Standards Officer Mohammed had given the defendants' private telephone number out to someone named Tony Stevens.

5. Applicable Law

[63] Both defendants have been charged individually as the owners of a property located at 35 Delphinium Way in Brampton with committing two offences on January 4, 2018: (1) one for contravening s. 67(1) of the Planning Act, R.S.O. 1990, c. P.13 by not complying with provisions of City of Brampton Zoning By-law 270-2004, by using their house as a Two-Unit House containing a second unit when it had been only zoned as a residential, single detached dwelling and (2) one for contravening s. 6 of the City of Brampton Second Unit Registration By-Law No. 87-2015, by failing to register the second unit in their Two-Unit House with the City of Brampton.

(A) Count #1 on Informations #6302 and #6303

[64] The first offence for which both joint homeowners, Shah Islam and Tasmin Chowdhury, were separately charged with committing on January 4, 2018, had been for using or permitting the use of lands for purposes that are not permitted under Brampton By-Law Zoning By-law No. 270-2004, by not complying specifically with three provisions of that by-law, namely ss. 10.16 and 13.4, and s. 3459 of Schedule A, for having an unauthorized "second unit" contained in their house. And, as such, these contraventions of the Zoning By-law would constitute an offence under s. 67(1) of the Planning Act, 1990, c. P.13, for the purposes of a penalty that could be imposed. In particular, the prosecution contends that the defendants were unlawfully using their property at 35 Delphinium Way as a two-unit residential house by "establishing, operating, or permitting the occupancy of a separate and self-contained basement apartment or second unit", which had not been properly registered with or legally permitted by the City of Brampton, since the defendants' house had been zoned only as singled detached residential dwelling.

[65] The power for the City of Brampton to pass "zoning by-laws" restricting the use of land is provided for under s. 34(1) of the Planning Act, R.S.O. 1990, c. P.13:

Zoning by-laws

34 (1) Zoning by-laws may be passed by the councils of local municipalities:

Restricting use of land

1. For prohibiting the use of land, for or except for such purposes as may be set out in the by-law within the municipality or within any defined area or areas or abutting on any defined highway or part of a highway.

[66] Therefore, the by-laws governing the zoning of land and restriction of uses for lands in Brampton is contained in Brampton Zoning By-law No. 270-2004. Section 1.1 of that By-law specifies that the Zoning By-law applies to all lands within the geographic boundaries of the City of Brampton, except those lands that are specifically excluded, while s. 2.3 of the Zoning By-law provides that no lands shall be used, nor the use of any building be changed in whole or part, except in conformity with the provisions of the by-law:

SECTION 1.0 APPLICATION

1.1 This by-law applies to all lands within the geographic boundaries of the City of Brampton, other than certain excluded lands referred to in Section 1.3.

2.3 Conformity with By-law

No lands shall be used, and no building or structure shall be erected, located, used or altered, nor shall the use of any building, structure or lot be changed, in whole or in part, except in conformity with the provisions of this by-law.

(1) s. 10.16 of Brampton Zoning Bylaw No. 270-2004

[67] The first provision which the prosecution contends had not been complied with by the defendants in count #1 is contained in s. 10.16 of the Brampton Zoning By-law, which sets outs the requirements and restrictions that apply to a "second unit" within a two-unit residential dwelling. Some of those requirements or restrictions which apply to second units include the restriction under s. 10.16(b) that a "second unit" is not permitted in a dwelling where the dwelling is located within a Floodplain or Open Space Zone, or within lands identified in Schedule B-6: Downtown Floodplain Regulations area; the restriction under s. 10.16(c) that the Gross Residential Floor Area of a "second unit" cannot exceed the Gross Residential Floor Area of the principal dwelling unit; the requirement under s. 10.16(d) that the property owner of a two-unit residential dwelling is required to provide a total of three parking spaces located entirely within the boundaries of the subject property and measuring a minimum of 2.6 metres in width and 5.4 metres in length; the restriction under s. 10.16(e) that there can only be a maximum of one "second unit" in a dwelling; the requirement under s. 10.16(f) that access to a "second unit" may be permitted through a garage or common vestibule as long as it would satisfy the Building Code regulations; and the requirement under s. 10.16(i) that the "second unit" within a two-unit dwelling be subject to the applicable Registration By-law:

10.16 Provisions for Two-Unit Dwellings:

The following requirements and restrictions shall apply for a second unit within a two-unit dwelling:

(a) Shall not be permitted within a lodging house, group home, or an accessory building;

(b) Shall not be permitted in dwellings located within a Floodplain or Open Space Zone, or within lands identified in Schedule B-6: Downtown Floodplain Regulations area;

(c) The Gross Residential Floor Area of a second unit shall not exceed the Gross Residential Floor Area of the principal dwelling unit.

(d) Notwithstanding Sections 6.17 and 10.9 of this By-law, a total of three parking spaces located entirely within the boundaries of the subject property and measuring a minimum of 2.6 metres in width and 5.4 metres in length shall be provided for a two-unit dwelling.

Tandem parking spaces to facilitate a second dwelling unit shall be permitted. The width of the residential driveway shall not exceed the maximum permitted width as specified in Section 10.9 of this By-law.

(e) A maximum of one second unit shall be permitted per dwelling;

(f) Access to a second dwelling unit may be permitted through a garage or common vestibule, subject to satisfying Building Code regulations;

(g) Where access to a second unit is provided through a door located in the side yard or rear yard, permitted encroachments, structures, utilities, or mechanical equipment shall not be permitted within 1.2 metres of the side lot line for the portion of the side yard between the access and the front wall of the dwelling; and,

(h) An above grade side door meeting the minimum 1.2 metre side yard requirement of Section 10.24 and used as the principal entrance to a second unit may be accessed by a landing less than 0.6 metres above ground level having a maximum length and width of 0.9 metres. Steps shall be provided at both the front and rear of the landing to provide pedestrian access from the front yard to the rear yard.

(i) Shall be subject to the applicable Registration By-law.

[68] In regard to s. 6.17, which is referred to in s. 10.16(d) of Brampton Zoning By-law No. 270-2004, s. 6.17 is a general provision that regulates the dimensions of parking spaces on lots or parcels of land. However, s. 6.17 would not apply to a two-unit residential house that has a "second unit", due to s. 10.16(d) which specifically requires 3 parking spaces for two-unit dwellings containing a second unit that have to meet minimum measurements:

6.17 Parking Spaces

6.17.1 Each parking space shall be an angled parking space or a parallel parking space.

(a) An angled parking space shall be a rectangular area measuring not less than 2.70 meters in width and 5.4 meters in length.

(b) A parallel parking space shall be a rectangular area measuring not less than 2.75 meters in width and 6.5 meters in length, the long side of which is parallel to an aisle.

6.17.2 Where parking spaces are provided or required other than for a single detached dwelling, the following requirements and restrictions shall apply:

(a) the parking spaces shall be provided or maintained on the same lot or parcel as the building or use for which they are required or intended;

(b) the width of a driveway leading to any parking area shall be a minimum width of 3 metres for one-way traffic, and a minimum width of 6 meters for two-way traffic;

(c) each parking space other than a tandem parking space shall have unobstructed access to an aisle leading to a driveway or street; and

(d) aisles leading to parking spaces and providing unobstructed access from each parking space to a driveway shall be established on the following basis:

Angle of Parking Minimum Aisle Width

(1) up to 50 degrees 4.0 metres

(2) 50 degrees up to 70 degrees 5.75 metres

(3) 70 degrees up to and including 90 degrees 6.6 metres

[69] Furthermore, s. 10.9 which is also referred to in s. 10.16 of Brampton Zoning By-law No. 270-2004, regulates parking spaces for houses zoned residential in the City of Brampton in general, but would also not be applicable to a two-unit residential house that has a "second unit". Section 10.9(a) specifically provides that unless otherwise specified, each dwelling unit within a single detached dwelling requires a minimum of two parking spaces, but as otherwise specified under s. 10.16(d), a two-unit residential house that has a "second unit" requires 3 parking spaces that have to meet minimum measurements:

10.9 Parking Space Requirements

10.9.1 Parking spaces are required in Residential Zones in accordance with the following provisions:

(a) Unless otherwise specified in this By-law, for each dwelling unit within a single detached dwelling, semi-detached dwelling, duplex dwelling, triplex dwelling, double duplex dwelling or street townhouse dwelling a minimum of two parking spaces are required.

(b) Where parking spaces are required or provided for a single detached dwelling, semi-detached dwelling, duplex dwelling, triplex dwelling, double duplex dwelling or street townhouse dwelling unit, the following requirements and restrictions shall apply:

(i) except for a parking space on a driveway, no parking space shall be permitted in the front yard;

(ii) the minimum width of a driveway shall be 3.0 metres and the width of a driveway shall not exceed 50 percent of the lot width unless such maximum driveway width would conflict with the minimum landscaped open space yard requirement in the applicable zone, in which case, the minimum landscaped open space requirement shall prevail;

(iii) for a lot less than 0.2 hectare, no person shall pave the rear yard for the purpose of parking motor vehicles other than a driveway leading to a garage permitted by this By-law and provided that such a driveway shall not be wider than 3 metres or the width of the garage door whichever is greater.

(c) Where more than one parking space is required for a residential unit excluding visitor spaces, tandem parking arrangements may be permitted provided that at least one parking space per dwelling unit has an unobstructed access to a driveway.

(d) Where a medical or dental office is located in a private residence, a minimum of 6 parking spaces shall be provided for each practitioner.

(e) For other home occupation uses a minimum of one parking space shall be provided for every 20.0 square metres of floor area occupied by the home occupation.

(f) Parking in a rear yard shall not be permitted for a home occupation use.

(g) For lodging houses a minimum of 0.5 parking space for each lodging unit, plus two parking spaces for the proprietor, shall be provided.

10.9.2 For each dwelling unit in an apartment or multiple family dwelling, the following number of parking spaces are required:

(a) Rental Apartment:

	Resident Spaces	Visitor Spaces	Total Spaces
Bachelor Rental Unit	1.03	0.20	1.23
One-bedroom Rental Unit	1.21	0.20	1.41
Two-bedroom Rental Unit	1.41	0.20	1.61
Three-bedroom Rental Unit	1.53	0.20	1.73
Senior Citizen Rental Unit	0.50	0.25	0.75

(b) Condominium Apartment

	Resident Spaces	Visitor Spaces	Total Spaces
One-bedroom or bachelor Condominium Unit	1.25	0.25	1.50
Two-bedroom Condominium Unit	1.40	0.25	1.65
Three (or more)-bedroom Condominium Unit	1.75	0.25	2.00

10.9.3 For each dwelling unit in a townhouse dwelling that does not have a private garage and driveway, the following number of parking spaces shall be provided:

	Resident Spaces	Visitor Spaces	Total Spaces
Two bedroom Rental Unit	1.30	0.25	1.55
Three-bedroom Rental Unit	1.46	0.25	1.71
Four (or more)-bedroom Rental Unit	2.00	0.25	2.25
Condominium Unit	2.05	0.25	2.30

10.9.4 For each dwelling unit in a rental or condominium townhouse dwelling that provides 2 parking spaces in a private driveway or garage, 0.3 space per dwelling unit of visitor spaces and recreation equipment spaces shall be provided.

[70] Consequently, for a homeowner to establish a legal basement apartment or second unit in a single detached residential house in Brampton, s. 10.16 of Brampton Zoning By-Law 270-2004 sets out conditions or restrictions that have to be complied with, such as:

• Only one "second unit" is permitted in a two-unit dwelling.
• A total of 3 parking spaces measuring 2.6 metres x 4.5 metres must be provided entirely on the property.
• The "second unit" must be smaller in floor area than the principal unit. The entrance to the "second unit" can be located in the side or rear yard provided there is a 1.2 metres unobstructed path of travel to the "principal entrance" that is located entirely on the property.
• A landing serving a "second unit" entrance must be less than 0.6 metres above ground level and is limited to a maximum length and width of 0.9 metres.
• Steps shall be provided at the front and rear of the landing for a "second unit" entrance.
• Two-unit dwellings are not permitted on lands zoned "Open Space", "Floodplain", or within the area identified as the "Downtown Floodplain Regulation Area".
• Shall be subject to the applicable Registration By-law

[71] Ergo, if the prosecution proves beyond a reasonable doubt that the defendants' house at 35 Delphinium Way had indeed contained a self-contained basement apartment or a "second unit" on January 4, 2018, then the defendant's house would be a "Two-Unit House" containing a "second unit" and be in contravention of s. 10.16 of Brampton Zoning By-law 270-2004, since it would no longer be used as "single detached residential dwelling", for which the defendants' house had been zoned as. Hence, in order for the defendants' house at 35 Delphinium Way to be a legal Two-Unit House with a second unit, the defendants would have to ensure that their house complies with s. 10.16 by meeting the criteria or restrictions contained in that provision. For example, according to s. 10.16(d), the defendants would have to provide a total of three parking spaces located entirely within the boundaries of their property and ensuring that the three spaces measure a minimum of 2.6 metres in width and 5.4 metres in length. And, according to s. 10.16(f) the defendants could provide access to the second dwelling unit in the basement of their house through a garage or common vestibule, but only if the access satisfies the Ontario Building Code regulations. Furthermore, according to s. 10.16(i) the defendants would also have to register their Two-Unit House containing the second unit with the City of Brampton to be in compliance with s. 10.16 of Brampton Zoning By-law 270-2004.

(2) s. 13.4 of Brampton Zoning Bylaw No. 270-2004

[72] For the second provision for which the prosecution contends had not been complied with under the Brampton Zoning By-law by the defendants in count #1, it is contained in s. 13.4 of Brampton Zoning By-law No. 270-2004. Section 13.4.1(a) states that lands zoned or designated as "R1E", as 35 Delphinium Way is zoned, can only be used as a "single detached residential dwelling", a group home type 1, or as an auxiliary group home:

SECTION 13.4 RESIDENTIAL SINGLE DETACHED

E-x – R1E-x Zone (x is the numerical number, for example, 9, 9.1, and 10.5 shown on Schedule A as R1E-9, R1E-9.1, and R1E-10.5 respectively)

The lands designated R1E-x (where x is a numerical number) on Schedule A to this by-law:

13.4.1 shall only be used for the following purposes:

(a) Residential
	(1) a single detached dwelling
	(2) a group home type 1
	(3) an auxiliary group home
(b) Non-Residential
	(1) a place of worship
	(2) purposes accessory to the other permitted purposes

13.4.2 shall be subject to the following requirements and restrictions:

(a) Minimum Lot Width

Interior Lot: the numerical number following the Zoning symbol of "R1E-" on Schedule A shall be the minimum interior lot width in metres Corner Lot: 3.3 metres wider than the minimum Interior Lot Width

(b) Minimum Lot Area

Shall be the value of 30 times the minimum lot width in square metres

(c) Minimum Lot Depth

30 metres

(d) Minimum Front Yard Depth

4.5 metres but 6.0 metres to the front of the garage

(e) Minimum Exterior Side Yard Width

4.5 metres

(f) Minimum Interior Side Yard Width

(1) where the minimum interior lot width is less than 12.5 metres: (i) 0.6 metres provided the combined total of the interior side yards on an interior lot is not less than 1.8 metres; (2) where the minimum interior lot width is greater than and equal to 12.5 metres but less than 15.8 metres: (i) 1.2 metres and 1.2 metres for an interior lot; (ii) 0.6 metres for a corner lot abutting an interior lot; (3) where the minimum interior lot width is 15.8 metres or greater: 1.2 metres

(g) Minimum Rear Yard Depth

7.5 metres

(h) Maximum Building Height

10.6 metres

(i) Minimum Landscaped Open Space

The entire yard areas shall be landscaped open space other than a driveway, an encroachment, or an accessory building permitted by this by-law

(j) Garage Control

(1) where the minimum interior lot width is less than 15 metres, no garage shall project into the front yard more than 1.5 metres beyond a porch or front wall of a dwelling, but where the minimum interior lot width is 15 metres or more, no garage shall project into the front yard beyond a porch or front wall of a dwelling. (2) no garage shall face the flankage lot line. (3) the maximum cumulative garage door width for an attached garage shall be: (a) 3.7 metres if the lot width is less than 10.4 metres; (b) 4.6 metres if the lot width is less than 11.6 metres but greater than or equal to 10.4 metres; (c) 5.0 metres if the lot width is less than 12.5 metres but greater than or equal to 11.6 metres; (d) 5.5 metres if the lot width in is less than 14 metres but greater than or equal to 12.5 metres (4) the maximum interior garage width, of an attached garage, shall be 0.6 metres wider than the maximum permitted cumulative garage door width. (5) on lots greater than 14 metres wide, the maximum interior garage width shall be 50% of the dwelling unit width.

(k) Driveway Width

The driveway width shall not exceed the width of the garage.

(l) Other Setbacks

When abutting a TransCanada Pipe Line right-of-way, the minimum building setback shall be 10 metres.

(m) Encroachment

A balcony or porch may project into the minimum front or exterior side yard by a maximum of 1.8 metres including eaves and cornices.

(n) Accessory Building

An accessory building shall have a minimum setback of 0.6 metres to a rear yard lot line or an interior side yard lot line.

[73] Therefore, if the prosecution proves beyond a reasonable doubt that the defendants' house at 35 Delphinium Way had contained a self-contained basement apartment or a "second unit" on January 4, 2018, then the defendant's house would be a "Two-Unit House" containing a "second unit" and be in contravention of s. 13.4 of Brampton Zoning By-law No. 270-2004, since it would no longer be used by the defendants as "single detached residential dwelling", for which the defendants' house had been zoned as.

(3) s. 3459 of Schedule A of Brampton Zoning Bylaw No. 270-2004

[74] And, for the third provision for which the prosecution contends had not been complied with under the Brampton Zoning By-law by the defendants in count #1 is set out in s. 3459 of Schedule A of the Brampton Zoning By-law, which states that the lands designated R1E-12.4 (single residential dwelling with a maximum 12.4 meters frontage) shall only be used for the purposes permitted in a R1E-12.4 zone and be subject to the requirements and restrictions relating to the R1E-12.4 zone and all the general provisions of the Brampton Zoning By-law:

3459 The lands designated R1E-12.4 – Section 3459 of Schedule A to this by-law:

3459.1 shall only be used for the purposes permitted in a R1E-12.4 zone.

3459.2 shall be subject to the following requirements and restrictions:

(a) the requirements and restrictions as set out in an R1E- 12.4 zone.

(b) porches and balconies, with or without cold cellars or foundations may project a maximum of 1.8 metres into the front yard, exterior side yard or rear yard.

(c) bay windows, chimney elements, projecting cornices and roof eaves, with or without foundations, may project a maximum of 1.0 metre into the front yard, interior side yard, exterior side yard or rear yard.

3459.3 shall also be subject to the requirements and restrictions relating to the R1E-12.4 zone and all the general provisions of this by-law, which are not in conflict with those set out in section 3459.2.

[75] Hence, if the prosecution proves beyond a reasonable doubt that the defendants' house at 35 Delphinium Way had contained a self-contained basement apartment or a "second unit" on January 4, 2018, then the defendant's house would be a "Two-Unit House" containing a "second unit" and be in contravention of s. 3459 of Schedule A of Brampton Zoning By-law 270-2004, since it would no longer be used by the defendants as "single detached residential dwelling", for which the defendants' house had been zoned as.

(4) The potential penalties both defendants would be facing if convicted of committing the offence set out in count #1

[76] Furthermore, if the defendants are individually found to have contravened any provision of Brampton's Zoning By-law No. 270-2004, then they are adjudged under s. 2.2 of that By-law to have committed an offence. Section 2.2 of Brampton Zoning By-Law 270-2004 contains the general penalty provision and provides that every person who contravenes any provision of that By-law is guilty of an offence and on conviction is liable to the penalties provided for under s. 67(1) of the Planning Act, c. P-13:

2.2 Violation and Penalty

Every person who contravenes any provision of this by-law is guilty of an offence and on conviction is liable to a fine as provided for in the Planning Act.

(5) s. 67(1) of the Planning Act

[77] Ergo, if the defendants contravene a by-law that has been passed pursuant to s. 34 of the Planning Act, R.S.O. 1990, c. P.13, such as Brampton's Zoning By-law 270-2004, they would be both subject to the penalties provided for under s. 67(1) of the Planning Act, which provides for a maximum fine of $25,000 for a first conviction and the possibility of receiving an order prohibiting the continuation or repetition of the offence:

Penalty

67 (1) Every person who contravenes section 41, section 46, subsection 49 (4) or section 52 or who contravenes a by-law passed under section 34 or 38 or an order made under section 47 and, if the person is a corporation, every director or officer of the corporation who knowingly concurs in the contravention, is guilty of an offence and on conviction is liable,

(a) on a first conviction to a fine of not more than $25,000; and

(b) on a subsequent conviction to a fine of not more than $10,000 for each day or part thereof upon which the contravention has continued after the day on which the person was first convicted.

Corporation

(2) Where a corporation is convicted under subsection (1), the maximum penalty that may be imposed is,

(a) on a first conviction a fine of not more than $50,000; and

(b) on a subsequent conviction a fine of not more than $25,000 for each day or part thereof upon which the contravention has continued after the day on which the corporation was first convicted, and not as provided in subsection (1).

Order of prohibition

(3) Where a conviction is entered under subsection (1), in addition to any other remedy or any penalty provided by law, the court in which the conviction has been entered, and any court of competent jurisdiction thereafter, may make an order prohibiting the continuation or repetition of the offence by the person convicted.

(B) Count #2 on Informations #6302 and #6303

[78] For count #2, both defendants have been charged on separate informations with contravening s. 6 of Brampton's Second Unit Registration By-law No. 87-2015, by failing to register with the City of Brampton on January 4, 2018, when they were legally required to do so, their Two-Unit House at 35 Delphinium Way that contained a basement apartment or "second unit", for which they had "established, operated or permitted to be occupied" in their house:

PART IV – REGISTRATION

6. No person shall establish, operate or permit the occupancy of a Second Unit, unless the Two-Unit House containing that Second Unit is registered in accordance with the requirements of this By-law.

[79] Furthermore, s. 7 of Brampton Second Unit Registration By-law No. 87-2015 provides that every person who "establishes, operates or permits the occupancy of a Second Unit" is legally required to register that Two-Unit House containing that second unit with the City of Brampton:

7. Every Person who establishes, operates or permits the occupancy of a Second Unit shall register the Two-Unit House containing that Second Unit as required by this By-law.

(1) The potential penalties both defendants would be facing if convicted of committing the offence set out in count #2

[80] Moreover, if convicted of failing to register their Two-Unit house containing a second unit with the City of Brampton as legally required under Brampton Second Unit Registration Bylaw No. 87-2015, both defendants would be facing the penalty set out in ss. 17 and 18 of that By-law. In particular, because both defendants' respective charges were commenced by a Part III Information, then according to s. 17(2) they would be upon conviction liable to a maximum fine of $25,000 and such other penalties as provided for in the Province Offences Act, R.S.O. 1990, c. P.33, and the Municipal Act, 2001, S.O. 2001, c. 25. Additionally, s. 18 provides that because of the potential for receiving an economic advantage from a Second Unit in a Two-Unit House that is not registered, then for the purposes of sentencing it may be considered as an aggravating factor which may attract a special fine, and that the maximum amount of the special fine that could be imposed may exceed $100,000 or such other maximum amount permitted by the Municipal Act, 2001:

17(1) Every person who contravenes any provision of this By-law, and every director or officer of a corporation who concurs in such contravention by the corporation, is guilty of an offence and on conviction is liable to a fine and such other penalties as provided for in the Province Offences Act, R.S.O. 1990, c. P.33, and the Municipal Act, 2001, as both may be amended from time to time.

(2) In addition to subsection (1), any person who is charged with an offence under this by-law in accordance with Part III of the Province Offences Act and is found guilty of the offence, is liable, in addition to any other penalties:

(a) if an individual, to a fine not more than $25,000; or

(b) if a corporation, to a fine not more than $50,000.

18. If a Person is convicted of an offence pursuant to this By-law, the potential for receiving an economic advantage from a Second Unit in a Two-Unit House that is not registered pursuant to this By-law may be considered an aggravating factor for sentencing purposes which may attract a special fine and the maximum amount of the special fine may exceed $100,000 or such other maximum amount permitted by the Municipal Act, 2001.

6. Issues

[81] The following are issues that have arisen in the trial that need to be resolved:

(a) What does a "self-contained residential dwelling unit" mean?

(b) Has the prosecution proven beyond a reasonable that there are two separate self-contained residential dwelling units in the house at 35 Delphinium Way?

(c) Does the prosecution have to prove that on January 4, 2018, there had been a tenant residing in the house at 35 Delphinium Way in order to prove that there are two separate self-contained residential dwelling units in the house.

(d) Does there have to be evidence that a stove has been connected in the basement kitchen in order to prove that the bedrooms, washroom and the kitchen in the basement comprise a separate self-contained residential dwelling unit?

(e) Does evidence of there being small appliances in the basement kitchen on January 4, 2018, which none would be a stove, and that could be used to prepare meals, along with tape being affixed to the main floor door that led to basement and being unable to be unlocked from the main floor side of the door, establish beyond a reasonable doubt that there were two separate self-contained residential dwelling units in the house at 35 Delphinium Way?

(f) For the purposes of Brampton Zoning By-law No. 270-2004 and Brampton Second Unit Registration By-law No. 87-2015, does the house at 35 Delphinium Way contain two separate self-contained residential dwelling units if the homeowners live in the basement and rent the upstairs of their home to tenants?

(g) If the homeowners were residing in the basement of their house at 35 Delphinium Way on January 4, 2018, then does the fact that the basement is being occupied by the homeowners themselves mean that the house does not by definition contain two separate self-contained residential dwelling units in the house, nor contain a "second unit", and that the house was not being used as a Two-Unit House on January 4, 2018?

(h) Is there any credible evidence that the homeowners were only sharing the entire house with a tenant on January 4, 2018?

(i) If the prosecution has proven beyond a reasonable doubt that the house at 35 Delphinium Way has two separate self-contained residential dwelling units, then has the prosecution proven beyond a reasonable double that the defendants had failed to register their Two-Unit House containing a second unit with the City of Brampton on January 4, 2018?

(j) If the prosecution has proven beyond a reasonable doubt the actus reus for both of the offences that are set out in count #1 and count #2 respectively, then have the defendants proven on a balance of probabilities that they had taken all reasonable steps in the circumstances to avoid committing the two offences in order to not be convicted of their respective charges?

7. Analysis

[82] Municipalities, such as the City of Brampton, have been granted the legal authority under s. 34 of the Planning Act, R.S.O. 1990, c. P.13, to pass zoning by-laws that may restrict the use of land or buildings that are located within its borders:

Zoning by-laws

34(1) Zoning by-laws may be passed by the councils of local municipalities:

Restricting use of land

1. For prohibiting the use of land, for or except for such purposes as may be set out in the by-law within the municipality or within any defined area or areas or abutting on any defined highway or part of a highway.

Restricting erecting, locating or using of buildings

2. For prohibiting the erecting, locating or using of buildings or structures for or except for such purposes as may be set out in the by-law within the municipality or within any defined area or areas or upon land abutting on any defined highway or part of a highway.

Construction of buildings or structures

4. For regulating the type of construction and the height, bulk, location, size, floor area, spacing, character and use of buildings or structures to be erected or located within the municipality or within any defined area or areas or upon land abutting on any defined highway or part of a highway, and the minimum frontage and depth of the parcel of land and the proportion of the area thereof that any building or structure may occupy.

Excepted lands and buildings

(9) No by-law passed under this section applies,

(a) to prevent the use of any land, building or structure for any purpose prohibited by the by-law if such land, building or structure was lawfully used for such purpose on the day of the passing of the by-law, so long as it continues to be used for that purpose; or

(b) to prevent the erection or use for a purpose prohibited by the by-law of any building or structure for which a permit has been issued under subsection 8 (1) of the Building Code Act, 1992, prior to the day of the passing of the by-law, so long as the building or structure when erected is used and continues to be used for the purpose for which it was erected and provided the permit has not been revoked under subsection 8 (10) of that Act.

[83] Zoning bylaws are enacted by municipal governments to control the use of land and buildings in their municipalities. These by-laws may direct how land may be used, where buildings and other structures can be located, the types of buildings that are permitted and how they may be used, and what the lot sizes and dimensions, parking requirements, building heights and setbacks should be from the street. It also may restrict the establishment of basement apartments or prohibit the use of houses for lodging houses, unless the house or property is zoned for such use and the homeowners comply with the requirements for having a legal basement apartment or second unit or a legal lodging house.

[84] In the present case, both defendants have been individually charged for not complying with 3 provisions of Brampton's Zoning Bylaw No. 270-2004, by having an illegal basement apartment or "second unit" in their house at 35 Delphinium Way on January 4, 2018, which is a contravention of s. 67(1) of the Planning Act, R.S.O. 1990, c. P.13. They both have also been individually charged with failing to register their Two-Unit House containing a second unit with the City of Brampton when they were legally required to do so on January 4, 2018, in contravention of s. 6 of Brampton Second Unit Registration Bylaw No. 87-2015.

(A) Are Basement Apartments, Second Units, And Garden Suites Legally Permitted In Brampton?

(1) Legislation governing "second units" in Ontario and in Brampton

[85] In 2011, because of the concerns about affordable housing in Ontario, the Ontario Legislature enacted the Strong Communities Through Affordable Housing Act, 2011, S.O. 2011, c. 6, which contained legislation intended to improve the affordable housing system in Ontario. As it relates to the present proceeding, the Strong Communities Through Affordable Housing Act, 2011 made key changes to Ontario's Planning Act, R.S.O. 1990, c. P.13, which had provided municipalities with the necessary land use and planning tools to allow for "second units" and garden suites to be established in single family residential dwellings, as a way to provide affordable housing.

(a) The Ontario Legislature's Policy On "Second Units" in Ontario?

(i) Section 3 of the Planning Act, R.S.O. 1990, c. P.13

[86] Section 3(1) of the Planning Act, R.S.O. 1990, c. P.13, provides that the Minister may from time to time issue policy statements on matters related to municipal planning that in the opinion of the Minister were of provincial interest. As well, a decision made by a municipality in respect of the exercise of any authority that affects a planning matter, was required to be consistent with the policy statements issued under the Planning Act:

Policy statements

3 (1) The Minister, or the Minister together with any other minister of the Crown, may from time to time issue policy statements that have been approved by the Lieutenant Governor in Council on matters relating to municipal planning that in the opinion of the Minister are of provincial interest.

Policy statements and provincial plans

(5) A decision of the council of a municipality, a local board, a planning board, a minister of the Crown and a ministry, board, commission or agency of the government, including the Tribunal, in respect of the exercise of any authority that affects a planning matter,

(a) shall be consistent with the policy statements issued under subsection (1) that are in effect on the date of the decision; and

(b) shall conform with the provincial plans that are in effect on that date, or shall not conflict with them, as the case may be.

Same

(6) Comments, submissions or advice affecting a planning matter that are provided by the council of a municipality, a local board, a planning board, a minister or ministry, board, commission or agency of the government,

(a) shall be consistent with the policy statements issued under subsection (1) that are in effect on the date the comments, submissions or advice are provided; and

(b) shall conform with the provincial plans that are in effect on that date, or shall not conflict with them, as the case may be.

Deemed policy statements

(8) Each of the following is deemed to be a policy statement issued under subsection (1):

1. A policy statement issued under section 31.1 of the Metrolinx Act, 2006.

2. A policy statement issued under section 11 of the Resource Recovery and Circular Economy Act, 2016.

3. A policy or statement that is prescribed for the purpose of this subsection.

Exceptions

(9) Subsections (1.1), (2), (3) and (10) do not apply to a policy or statement that is deemed by subsection (8) to be a policy statement issued under subsection (1).

Review

(10) The Minister shall, at least every 10 years from the date that a policy statement is issued under subsection (1), ensure that a review of the policy statement is undertaken for the purpose of determining the need for a revision of the policy statement.

(ii) Provincial Policy Statement, 2014

[87] Provincial Policy Statement, 2014, which had been issued under s. 3(1) of the Planning Act, R.S.O. 1990, c. P.13, applies to planning matters in Ontario. According to s. 3 of the Planning Act, municipal decisions affecting planning matters "shall be consistent with" policy statements issued under that Act. Ergo, in respect to zoning by-laws that are enacted by municipalities in Ontario, municipalities had to ensure that their zoning by-laws would be in compliance with the policies contained in the Provincial Policy Statement, 2014 issued under the Planning Act:

Part II: Legislative Authority

The Provincial Policy Statement is issued under the authority of section 3 of the Planning Act and came into effect on April 30, 2014.

In respect of the exercise of any authority that affects a planning matter, section 3 of the Planning Act requires that decisions affecting planning matters "shall be consistent with" policy statements issued under the Act.

[88] In addition, Provincial Policy Statement, 2014 which came into effect on April 30, 2014, applies to planning decisions made on or after that date. It replaced the Provincial Policy Statement, 2005, that was issued on March 1, 2005. In addition, Provincial Policy Statement, 2014 would generally apply for a period of 10 years. Furthermore, s. 1.4.3 of Provincial Policy Statement, 2014 directs municipalities to permit all forms of housing which would provide an appropriate range and mix of housing types and densities, including affordable housing. But more importantly, s. 1.4.3(b)(2) directs municipalities to permit and facilitate all forms of residential intensification and redevelopment, including the establishment of "second units":

1.4.3 Planning authorities shall provide for an appropriate range and mix of housing types and densities to meet projected requirements of current and future residents of the regional market area by:

a) establishing and implementing minimum targets for the provision of housing which is affordable to low and moderate income households. However, where planning is conducted by an upper-tier municipality, the upper-tier municipality in consultation with the lower-tier municipalities may identify a higher target(s) which shall represent the minimum target(s) for these lower-tier municipalities;

b) permitting and facilitating:

1. all forms of housing required to meet the social, health and well-being requirements of current and future residents, including special needs requirements; and

2. all forms of residential intensification, including second units, and redevelopment in accordance with policy 1.1.3.3;

c) directing the development of new housing towards locations where appropriate levels of infrastructure and public service facilities are or will be available to support current and projected needs;

d) promoting densities for new housing which efficiently use land, resources, infrastructure and public service facilities, and support the use

[89] Hence, the policy regarding "second units" would help increase the supply and range of affordable rental accommodation and permit homeowners to earn additional income to help meet the cost of homeownership. In addition, allowing the establishment of second units in single dwelling units would allow homeowners to provide more housing options for extended families or elderly parents, or for a live-in caregiver. As well, second units would also make more efficient use of existing infrastructure, including public transit where it exists or is planned.

[90] In addition, the establishment of "second units" would make more efficient use of the existing housing stock and assist municipalities in meeting their goals regarding affordable housing, intensification and density targets, and climate change mitigation and greenhouse gas emissions reduction.

[91] However, before "second units" could be established or occupied they had to comply with health, safety and municipal property standards, and with the Ontario Building, Fire, Electrical, and Plumbing Codes, and with municipal property standards by-laws, so as to protect the public and to ensure that the second units would be safe, healthy, and liveable.

(b) Amendments that were made to Ontario's Planning Act, R.S.O. 1990, c. P.13, to facilitate the establishment of "second units" in Ontario?

[92] The amendments made to s. 16 of the Planning Act, R.S.O. 1990, c. P.13, in respect to the authorization and establishment of "second units" in single detached residential dwellings were implemented by Schedule 2 of the Strong Communities Through Affordable Housing Act, 2011, S.O. 2011, c. 6:

Schedule 2 Amendments to Planning Act

1. Clause 2 (j) of the Planning Act is repealed and the following substituted:

(j) the adequate provision of a full range of housing, including affordable housing;

2. Section 16 of the Act is amended by adding the following subsection:

Second unit policies

(3) Without limiting what an official plan is required to or may contain under subsection (1) or (2), an official plan shall contain policies that authorize the use of a second residential unit by authorizing,

(a) the use of two residential units in a detached house, semi-detached house or rowhouse if no building or structure ancillary to the detached house, semi-detached house or rowhouse contains a residential unit; and

(b) the use of a residential unit in a building or structure ancillary to a detached house, semi-detached house or rowhouse if the detached house, semi-detached house or rowhouse contains a single residential unit.

3.(1) Subsection 17 (24.1) of the Act is repealed and the following substituted:

No appeal re second unit policies

(24.1) Despite subsection (24), there is no appeal in respect of the policies described in subsection 16 (3), including, for greater certainty, any requirements or standards that are part of such policies.

(2) Subsection 17 (36.1) of the Act is repealed and the following substituted:

No appeal re second unit policies

(36.1) Despite subsection (36), there is no appeal in respect of the policies described in subsection 16 (3), including, for greater certainty, any requirements or standards that are part of such policies.

4. Clause 22 (7.2) (c) of the Act is repealed and the following substituted:

(c) amend or revoke the policies described in subsection 16 (3), including, for greater certainty, any requirements or standards that are part of such policies.

5. Subsection 34 (19.1) of the Act is repealed and the following substituted:

No appeal re second unit policies

(19.1) Despite subsection (19), there is no appeal in respect of a by-law that gives effect to the policies described in subsection 16 (3), including, for greater certainty, no appeal in respect of any requirement or standard in such a by-law.

6. The Act is amended by adding the following section:

By-laws to give effect to second unit policies

35.1(1) The council of each local municipality shall ensure that the by-laws passed under section 34 give effect to the policies described in subsection 16 (3).

Regulations

(2) The Minister may make regulations,

(a) authorizing the use of residential units referred to in subsection 16 (3);

(b) establishing requirements and standards with respect to residential units referred to in subsection 16 (3).

Regulation applies as zoning by-law

(3) A regulation under subsection (2) applies as though it is a by-law passed under section 34.

Regulation prevails

(4) A regulation under subsection (2) prevails over a by-law passed under section 34 to the extent of any inconsistency, unless the regulation provides otherwise.

Exception

(5) A regulation under subsection (2) may provide that a by-law passed under section 34 prevails over the regulation.

Regulation may be general or particular

(6) A regulation under subsection (2) may be general or particular in its application and may be restricted to those municipalities or parts of municipalities set out in the regulation.

7. Subsection 39.1 (3) of the Act is repealed and the following substituted:

Area and time in effect

(3) Despite subsection 39 (2), a by-law authorizing the temporary use of a garden suite shall define the area to which it applies and specify the period of time for which the authorization shall be in effect, which shall not exceed 20 years from the day of the passing of the by-law.

Commencement

8.(1) Subject to subsection (2), this Schedule comes into force on the day the Strong Communities through Affordable Housing Act, 2011 receives Royal Assent.

Same

(2) Sections 2 to 6 come into force on a day to be named by proclamation of the Lieutenant Governor.

[93] Moreover, the amendments to the Planning Act that were enacted under the Strong Communities Through Affordable Housing Act, 2011, S.O. 2011, c. 6, which authorized and allowed for the establishment of "second units" and "garden suites" as a way to provide affordable housing, is also one of the "provincial interests" that are set out under s. 2 of the Planning Act:

Provincial interest

2. The Minister, the council of a municipality, a local board, a planning board and the Tribunal, in carrying out their responsibilities under this Act, shall have regard to, among other matters, matters of provincial interest such as,

(j) the adequate provision of a full range of housing, including affordable housing;

[94] After amendments to the Planning Act were enacted which authorized and allowed for the establishment of "second units", the City of Brampton had been obligated under s. 16(1)(a.1) of the Planning Act to ensure that their official plan included "such policies and measures as are practicable to ensure the adequate provision of affordable housing" and that under s. 16(3) of the Planning Act their official plan "contain policies that authorize the use of a second residential unit by authorizing the use of two residential units in a detached house, semi-detached house or rowhouse if no building or structure ancillary to the detached house, semi-detached house or rowhouse contains a residential unit"; and "the use of a residential unit in a building or structure ancillary to a detached house, semi-detached house or rowhouse if the detached house, semi-detached house or rowhouse contains a single residential unit":

Official plan

Contents of official plan

16 (1) An official plan shall contain,

(a) goals, objectives and policies established primarily to manage and direct physical change and the effects on the social, economic, built and natural environment of the municipality or part of it, or an area that is without municipal organization;

(a.1) such policies and measures as are practicable to ensure the adequate provision of affordable housing;

(b) a description of the measures and procedures for informing and obtaining the views of the public in respect of,

(i) proposed amendments to the official plan or proposed revisions of the plan,

(ii) proposed zoning by-laws,

(iii) proposed plans of subdivision, and

(iv) proposed consents under section 53; and

(c) such other matters as may be prescribed.

Second unit policies

(3) An official plan shall contain policies that authorize the use of a second residential unit by authorizing,

(a) the use of two residential units in a detached house, semi-detached house or rowhouse if no building or structure ancillary to the detached house, semi-detached house or rowhouse contains a residential unit; and

(b) the use of a residential unit in a building or structure ancillary to a detached house, semi-detached house or rowhouse if the detached house, semi-detached house or rowhouse contains a single residential unit.

Inclusionary zoning policies

(4) An official plan of a municipality that is prescribed for the purpose of this subsection shall contain policies that authorize inclusionary zoning by,

(a) authorizing the inclusion of affordable housing units within buildings or projects containing other residential units; and

(b) providing for the affordable housing units to be maintained as affordable housing units over time.

Same

(5) An official plan of a municipality that is not prescribed for the purpose of subsection (4) may contain the policies described in subsection (4).

Adoption of inclusionary zoning policies

(5.1) The policies described in subsection (4) may be adopted in respect of an area described in clause (5) (a) or (b) as part of an official plan or an amendment to an official plan that includes policies,

(a) that identify an area as the protected major transit station area described in clause (5) (a); or

(b) that must be contained in an official plan before the development permit system described in clause (5) (b) may be adopted or established. 2019, c. 9, Sched. 12, s. 2 (2).

Goals and objectives

(6) The policies described in subsection (4) shall include goals and objectives and a description of the measures and procedures proposed to attain those goals and objectives.

Prescribed provisions and matters

(7) The policies described in subsection (4) shall include the prescribed provisions and provisions about the prescribed matters.

No limitation

(8) Each subsection of this section shall be read as not limiting what an official plan is required to or may contain under any of the other subsections.

[95] Furthermore, s. 35.1(1) of the Planning Act, R.S.O. 1990, c. P.13, specifies that the council of each local municipality shall ensure that the by-laws passed under section 34 will give effect to the "second unit" policies described in s. 16(3) of the Planning Act:

By-laws to give effect to second unit policies

35.1 (1) The council of each local municipality shall ensure that the by-laws passed under section 34 give effect to the policies described in subsection 16 (3).

Regulations

(2) The Minister may make regulations,

(a) authorizing the use of residential units referred to in subsection 16 (3);

(b) establishing requirements and standards with respect to residential units referred to in subsection 16 (3).

Regulation applies as zoning by-law

(3) A regulation under subsection (2) applies as though it is a by-law passed under section 34.

Regulation prevails

(4) A regulation under subsection (2) prevails over a by-law passed under section 34 to the extent of any inconsistency, unless the regulation provides otherwise.

Exception

(5) A regulation under subsection (2) may provide that a by-law passed under section 34 prevails over the regulation.

Regulation may be general or particular

(6) A regulation under subsection (2) may be general or particular in its application and may be restricted to those municipalities or parts of municipalities set out in the regulation.

[96] In addition, s. 17(24.1) of the Planning Act, R.S.O. 1990, c. P.13, restricts appeals of "second unit" official plan policies and zoning by-law provisions to the Ontario Municipal Board, except by the Minister:

No appeal re second unit policies

17(24.1) Despite subsection (24), there is no appeal in respect of the policies described in subsection 16(3), including, for greater certainty, any requirements or standards that are part of such policies.

[97] Hence, Ontario's Planning Act now requires that municipalities authorize "second units" in their official plans and zoning by-laws. In addition, the allowance of "garden suites" under the Planning Act came into effect on May 4, 2011, while the changes for "second units" came into effect on January 1, 2012.[3] The Planning Act also legally authorizes "second units" to be established in single-detached, semi-detached and row dwellings under s. 16(3)(a), and in ancillary structures under s. 16(3)(b).

[98] Therefore, s. 16(3) of the Planning Act, R.S.O. 1990, c. P.13, also requires that official plan's policies and the implementation of zoning by-laws authorize the establishment of "second units" in (1) detached, semi-detached and row houses if an ancillary building or structure does not contain a second unit and (2) in a building or structure ancillary to these housing types provided that the primary dwelling does not contain a second unit.

(c) Purpose of the City of Brampton Second Unit Registration By-law No. 87-2015

[99] Section 10.16(i) of Brampton Zoning Bylaw No. 270-2004 makes "second units" in Two-Unit Houses in Brampton subject to the applicable registration by-law. A compulsory registry for the registration of second residential dwelling units in Brampton would allow the City of Brampton to have the ability to protect public safety, health and livability of those second units.

[100] More importantly, in the Recitals set out in Brampton Second Unit Registration By-law No. 87-2015, it is stated that "the City of Brampton considers it important to enact a by-law to require the registration of second residential units in the City of Brampton in order to protect persons, property and the health, safety and well-being of Brampton residents":

RECITALS

Section 16(3) of the Planning Act, S.O., 1990, C. P.13, as amended, requires municipalities to implement official plan policies authorizing the use of second residential units;

Section 35.1(1) of the Planning Act, S.O., 1990, C. P.13, as amended, requires that by-laws passed under section 34 give effect to the policies described in subsection 16(3) of that Act;

The City of Brampton has added policies to the City's Official Plan and City's Comprehensive Zoning By-law in order to comply with these Planning Act requirements;

Section 8(1) of the Municipal Act, 2001, S.O. 2001, c. 25, as amended, (Municipal Act, 2001) provides that the powers of a municipality under any Act shall be interpreted broadly so as to confer broad authority on municipalities to enable them to govern their affairs as they consider appropriate, and to enhance their ability to respond to municipal issues;

Section 11(2) (6) of the Municipal Act, 2001, authorizes municipalities to pass by-laws respecting the health, safety and well-being of persons and the protection of persons and property;

The Council of The Corporation of the City of Brampton considers it important to enact a by-law to require the registration of second residential units in the City of Brampton in order to protect persons, property and the health, safety and well-being of Brampton residents;

[101] Moreover, Brampton Second Unit Registration By-law No. 87-2015 provides the City of Brampton with the legal tool and means for tracking and monitoring second units. This legal requirement for homeowners to register their basement apartments or second residential dwelling units with the City of Brampton assists the municipality in being made aware of where these "second units" are and to allow for the inspection of these second units for public health, safety, and liveability. Moreover, the second unit registry would also assist Brampton's emergency services, such as the Fire Department, by providing them with critical information in the case of a fire by informing them of the presence of two residential dwelling units in a particular house. Furthermore, requiring the registration of second units in Brampton also allows the Brampton Building Division to monitor the residential house and second unit through a building permit process, which would ensure that the house and second unit complies with the Fire, Building, Electrical, and Plumbing Codes of Ontario.

(B) Count #1 – Using Or Permitting The Use Of Lands For Purposes Not Permitted By Brampton Zoning By-Law No. 270-2004

[102] Both defendants in count #1 of their respective informations have been charged with committing the same offence of using or permitting the use of lands for purposes not permitted by ss. 10.16 and 13.4, and s. 3459 of Schedule A of City of Brampton Zoning By-law No. 270-2004, on or about January 4, 2018, by using the property at 35 Delphinium Way, Brampton, as a Two-Unit House containing a Second Unit, which would be contrary to s. 67(1) of the Planning Act, R.S.O. 1990, c. P.13.

(1) Has The Prosecution Proven Beyond A Reasonable Double That The House At 35 Delphinium Way, Brampton Is A Two-Unit House?

[103] Both the charges in counts #1 and #2 in both of the defendants' informations refer to the contention that there is a "second unit" contained in a Two-Unit House located at 35 Delphinium Way, Brampton on January 4, 2018. To determine if the defendants have committed their respective two charges, the following questions have to be answered. First, what is a "Two-Unit House"? Second, what is a "residential dwelling unit"? And third, what a "second unit"?

(a) What is a Two-Unit house?

[104] A "Two-Unit House" is defined in the definition section set out in s. 5 of Brampton Second Unit Registration By-law No. 87-2015, and "means a detached house … comprising two residential dwelling units":

Part II Definitions

5. For the purpose of this Bylaw:

"Two-Unit House" means a detached house, a semi-detached house, or row house comprising two residential dwelling units.

[105] A "Two-Unit House" is also defined in the definition section set out in s. 5 of Brampton Zoning By-law No. 270-2004, and "means a single detached dwelling which contains two residential units":

TWO UNIT HOUSE shall mean a single detached dwelling which contains two residential units.

(b) What is a "residential dwelling unit"?

[106] A "residential unit" is defined in the definition section set out in s. 5 of the City of Brampton Zoning By-law No. 270-2004 and "means a unit that consists of a self-contained set of rooms located in a building or structure; that is used or is intended to be used as a residential premises; that contains kitchen and bathroom facilities that are used only by the occupants of the unit; that is used as a single housekeeping unit, which includes a unit in which an occupant has exclusive possession of any part of the unit; and that has a means of egress to the outside of the building or structure in which it is located, which may be a means of egress through another residential unit".

RESIDENTIAL UNIT shall mean a unit that:

(a) consists of a self-contained set of rooms located in a building or structure;

(b) is used or is intended to be used as a residential premises;

(c) contains kitchen and bathroom facilities that are used only by the occupants of the unit;

(d) is used as a single housekeeping unit, which includes a unit in which an occupant has exclusive possession of any part of the unit; and

(e) has a means of egress to the outside of the building or structure in which it is located, which may be a means of egress through another residential unit.

[107] In addition, a "dwelling unit" is defined in the definition section set out in s. 5 of the City of Brampton Zoning By-law No. 270-2004 and "means one or more habitable rooms designed or capable of being used together as a single and separate housekeeping unit by one person or jointly by two (2) or more persons, containing its own kitchen and sanitary facilities, with a private entrance from outside of the unit itself":

DWELLING UNIT shall mean one or more habitable rooms designed or capable of being used together as a single and separate housekeeping unit by one person or jointly by two (2) or more persons, containing its own kitchen and sanitary facilities, with a private entrance from outside of the unit itself.

[108] A "habitable room" is defined in the definition section set out in s. 5 of Brampton Zoning By-law No. 270-2004 and "means one or more habitable rooms designed or capable of being used together as a single and separate housekeeping unit by one person or jointly by two (2) or more persons, containing its own kitchen and sanitary facilities, with a private entrance from outside of the unit itself":

HABITABLE ROOM means any room in a dwelling unit used or that can be used for purposes of living, sleeping, cooking or eating.

[109] A "dwelling" is defined in the definition section set out in s. 5 of Brampton Zoning By-law No. 270-2004 and means "a building occupied or capable of being occupied as a home, residence or sleeping place by one or more persons":

DWELLING shall mean a building occupied or capable of being occupied as a home, residence or sleeping place by one or more persons.

[110] A "single detached dwelling" is also defined in the definition section set out in s. 5 of the City of Brampton Zoning By-law No. 270-2004 and means "a completely detached residential building containing only one dwelling unit":

DWELLING, SINGLE DETACHED shall mean a completely detached residential building containing only one dwelling unit.

[111] In addition, a "Second Unit" is defined in the definition section set out in s. 5 of Brampton Second Unit Registration By-law No. 87-2015 and "means an accessory self-contained residential dwelling unit with its own cooking facility, sanitary facility and sleeping area within a Two-Unit House".

"Second Unit" means an accessory self-contained residential dwelling unit with its own cooking facility, sanitary facility and sleeping area within a Two-Unit House.

[112] But more importantly, the definition of "Second Unit" set out in s. 5 of Brampton Second Unit Registration By-law No. 87-2015 would also apply by necessary implication to Brampton Zoning By-law No. 270-2004, since s. 10.16(i) of Brampton Zoning By-law No. 270-2004 subjects second units to the applicable registration by-law, which would be Brampton Second Unit Registration By-law No. 87-2015.

(c) What is an "accessory self-contained residential dwelling unit"?

[113] The phrase "accessory self-contained residential dwelling unit" is used in the definition of a "second unit" under s. 5 of Brampton Second Unit Registration By-law No. 87-2015. However, the terms "accessory" and "self-contained" are not defined either in the Brampton Zoning By-law No. 270-2004 or the Brampton Second Unit Registration By-law No. 87-2015. Therefore, dictionary meanings for those two terms will have to be relied upon for their meaning.

(i) What does the terms "accessory" and "self-contained" mean for the purposes of Brampton By-law No. 87-2015 and in the context of a "second unit"?

[114] In Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27, Iacobucci J. writing for the Supreme Court of Canada at pp. 40-41, held that the modern principled approach should be used by courts instead of the plain meaning approach, when they are required to interpret or construe the meaning of a particular statutory provision, by stating that the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of the legislators who enacted the statutory provision:

Although much has been written about the interpretation of legislation (see, e.g. Ruth Sullivan, Statutory Interpretation (1997); Ruth Sullivan, Driedger on the Construction of Statutes (3rd ed. 1994) (hereinafter "Construction of Statutes"); Pierre-André Côté, The Interpretation of Legislation in Canada (2nd ed. 1991)), Elmer Driedger in Construction of Statutes (2nd ed. 1983) best encapsulates the approach upon which I prefer to rely. He recognizes that statutory interpretation cannot be founded on the wording of the legislation alone. At p. 87 he states:

Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.

[115] Furthermore, for regulatory offences in Ontario, s. 64(1) of the Legislation Act, 2006, c. 21, Sched. F, states that a fair, large and liberal interpretation should be made of Ontario statutes to best ensure the attainment of the object of a statute:

Rule of liberal interpretation

64 (1) An Act shall be interpreted as being remedial and shall be given such fair, large and liberal interpretation as best ensures the attainment of its objects.

[116] Moreover, the Supreme Court of Canada in R. v. Jarvis, 2002 SCC 73, [2002] 3 S.C.R. 757, [2002] S.C.J. No. 76, at para. 77 of [2002] S.C.J. No. 76, has reaffirmed that the proper approach in seeking the legislative intent of a statutory provision is by reading the words in context and according to their grammatical and ordinary sense, harmoniously with the scheme and the object of the statute:

The approach to statutory interpretation can be easily stated: one is to seek the intent of Parliament by reading the words of the provision in context and according to their grammatical and ordinary sense, harmoniously with the scheme and the object of the statute (Interpretation Act, R.S.C. 1985, c. I-21, s. 12; Bell ExpressVu Limited Partnership v. Rex, [2002] 2 S.C.R. 559, 2002 SCC 42; Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27; R. v. Gladue, [1999] 1 S.C.R. 688; E. A. Driedger, Construction of Statutes (2nd ed. 1983), at p. 87).

[117] Similarly, the "ejusdem generis" rule for determining the grammatical meaning of a phrase or clause provides that ambiguous phrases or clauses derive their meanings from the specific context in which they appear.

[118] Furthermore, in her textbook, Statutory Interpretation (Toronto, Ontario: Irwin Law Inc., 1997), at pp. 54, 134, and 137, Professor Ruth Sullivan emphasized that interpreters of legislative text must identify and take into account the purpose of legislation, analyze the words to be interpreted in context, and that modern legislation is also written in a form that lends itself to purposive analysis:

The meaning of a legislative text is determined by analysing the words to be interpreted in context. Words are analysed in their immediate context by focusing on the specific provision in which the words appear and attempting to understand the reasons why the legislature has chosen this combination of words, this structure, this punctuation, and so on. Words are also analysed in larger contexts by comparing the wording of the provision to be interpreted with the wording of provisions elsewhere in the same or other Acts and by considering the role of the provision in the scheme to which it belongs.

To achieve a sound interpretation of a legislative text, interpreters must identify and take into account the purpose of legislation. This includes the purpose of the provision to be interpreted as well as larger units - parts, divisions, and the Act as a whole. Once identified, the purpose is relied on to help establish the meaning of the text. It is used as a standard against which proposed interpretations are tested: an interpretation that promotes the purpose is preferred over one that does not, while interpretations that would tend to defeat the purpose are avoided.

The most authoritative statements of purpose are found in the preambles to statutes or in purpose statements set out in the body of the statute or regulation. Preambles usually recite the facts or considerations that led to the enactment of legislation, leaving it to the interpreter to infer the purpose. Purpose statements tend to be more direct. They normally list the primary goals the legislation is meant to achieve or the principles or policies that should be taken into account in interpreting it. …

[119] First, for the term, "accessory", the dictionary meaning of the word "accessory" is contained in The Concise Oxford Dictionary of Current English, ninth edition (New York: Oxford University Press, 1995), is set out at p. 8 and provides the following meanings, which includes something that is "additional":

accessory /ǝk'sɛs(ǝ)ri/ n. & adj. (also accessary) ●n. (pl. -ies) 1 an additional or extra thing. 2 (usu. in pl.) a a small attachment or fitting. b a small item (esp. a woman's) dress (e.g. shoes, gloves, handbag). 3 (often foll. by to) a person who helps in or knows the details of an (esp. illegal) act, without taking part in it. ●adj. additional; contributing or aiding in a minor way; dispensable. £ accessory before (or after) the fact a person who incites (or assists) another to commit a crime. £ accessorial /ǝk'sɛ'sᴐ:rɪǝl/ adj. [medieval Latin accessorius (as ACCEDE)]

[120] Second, for the term, "self-contained", the dictionary meaning of the word "self-contained" is found in The Concise Oxford Dictionary of Current English, ninth edition (New York: Oxford University Press, 1995), is set out at p. 1254 and provides the following meanings, which includes "living accommodation" that is "complete in itself":

self-contained /sɛlfkǝn'temd/ adj. 1 (of a person) uncommunicative; independent. 2 Brit. (esp. of living accommodation) complete in itself. £ self-containment n.

[121] Furthermore, the word "self-contained" is also defined in the online Cambridge Dictionary and provides the following meanings (dictionary.cambridge.org.: Cambridge Dictionary, online: dictionary.cambridge.org. website https://dictionary.cambridge.org/dictionary/english/self-contained) such as something "containing or having everything that is needed within itself", like an apartment that is "completely self-contained, with its own bathroom, kitchen, and living area", as an example:

self-contained

adjective UK ​ /ˌself.kənˈteɪnd/ US ​ /ˌself.kənˈteɪnd/

containing or having everything that is needed within itself:

The apartment is small, but completely self-contained, with its own bathroom, kitchen, and living area.

A self-contained person does not have a large number of relationships with other people or does not depend on others for support:

(ii) What does a "self-contained dwelling unit" mean?

[122] Based on the dictionary meanings of "self-contained" in reference to or in the context of living accommodation, "self-contained" refers to something that is complete in itself and would be defined as containing or having everything that is needed within itself.

[123] Hence, an "accessory self-contained residential dwelling unit" for the purposes of Brampton Second Unit Registration By-law No. 87-2015, means an additional residential dwelling unit that is complete in itself as a living accommodation or apartment which would contain a kitchen for preparing meals, rooms for sleeping, and a bathroom for sanitary functions so that a person living there does not have to share rooms such as a kitchen or bathroom with other people in the house, and with its own entrance to the unit.

(d) Has the prosecution proven beyond a reasonable doubt that the house at 35 Delphinium Way contained a "Second Unit"?

[124] Property Standards Officer Mohammed testified that on January 4, 2018, he had observed the door that leads to the basement from the main floor taped shut and the owner, Shah Islam being unable to open or unlock that door that leads to the basement. In addition, Property Standards Officer Mohammed said that he was only able to make observations of the basement when he and Shah Islam had entered the basement through the entrance to the basement that is found inside the garage and only accessible through the garage. Mohammed also said he had observed Shah Islam unlock the door that was in the garage that led to the basement. While in the basement on January 4, 2018, with Shah Islam, Property Standards Officer Mohammed said he had observed three rooms containing beds, a bathroom, and a kitchen with 4 appliances and an electric plug and fittings for a stove, but that did not see a stove in the kitchen. The 4 appliances that he had observed were a fridge, a rice cooker, and a microwave, and what he thought was a toaster oven.

[125] Furthermore, although there is door that leads to the basement which provides access to the outside by going through the garage, there is no evidence that the access to the basement through the garage meets the Ontario Building Code requirements.

[126] In addition, there is also no evidence that there are 3 parking spaces measuring a minimum of 2.6 metres in width and 5.4 metres in length that are required for a Two-Unit Housem, which have been established on the property at 35 Delphinium Way, as required under s. 10.16(d) of Brampton Zoning By-law No. 270-2004.

(i) Has the prosecution proven that there is an "accessory self-contained dwelling unit" in the house at 35 Delphinium Way?

[127] For the house at 35 Delphinium Way, the impugned "accessory self-contained dwelling unit" is contained in the basement. It is "accessory" because the principal dwelling unit is contained on the main floor and the second floor of the two-story house and the "second unit" is contained in the basement of that house. It is also self-contained because on January 4, 2018, the door to the basement from the main floor has been sealed with tape and the owner, Shah Islam, had been unable to open or unlock that door so that Property Standards Officer Mohammed could enter the basement using that door, but had to gain entry to that basement unit though a door only accessible through the garage. Moreover, Shah Islam had also testified that he had taped the door leading the basement from the main floor because the prospective tenant, who did not actually move into the main floor and second floor of the house, had wanted the door leading to the basement from the main floor to be closed off so that anyone living in the basement of the house could not enter the main floor of the house through the basement. Shah Islam said he did not want to lock the door leading to the basement from the main floor because of concerns for his wife and himself being able to escape or exit the basement in case of an emergency, such as for a fire. On the other hand, Shah Islam said he had looked for the cheapest way to block off that door without losing the ability to escape through that door in case of an emergency. Affixing tape to that door appears to be an attempt by Shah Islam to set up a form of warning or detection system for the prospective main floor tenant to know if anyone had entered the main floor unit through that door by being able to observe that the tape had become detached or displaced from the door.

[128] Furthermore, the residential dwelling unit in the basement is "self-contained" because it contained rooms for sleeping, a bathroom for sanitary, and a kitchen for preparing food on January 4, 2018, in which the people residing in the basement would not have to share those bedrooms, bathroom or kitchen with people residing on the main floor and second floor of the house at 35 Delphinium Way, because there were also separate bedrooms, a bathroom and a kitchen on the main floor or second floor of the house. Moreover, even though there was no stove in the basement kitchen, a stove could be brought in and easily connected as the electrical connections or electrical plug for the stove were present on January 4, 2018. But even without a stove in the basement kitchen, a microwave was present in the basement kitchen which could be used for preparing meals.

[129] Ergo, the prosecution has proven there is a "self-contained residential dwelling unit" in the basement of the defendants' house at 35 Delphinium Way on January 4, 2018, which is also proof that there are two separate residential dwelling units in the house. As such, the prosecution has also proven beyond a reasonable doubt that the house at 35 Delphinium Way is a "Two-Unit House" containing a second unit on January 4, 2018.

(ii) Does the prosecution have to prove that there is a stove in the basement kitchen to prove that the rooms in the basement comprise an "accessory self-contained dwelling unit"?

[130] The defendants had questioned how there could be a separate residential dwelling unit in the basement if there is no stove in the basement kitchen that could be used for cooking meals. To reiterate, a "Second Unit" is defined under s. 5 of the City of Brampton By-Law Second Unit Registration By-law No. 87-2015 and "means an accessory self-contained residential dwelling unit with its own cooking facility, sanitary facility and sleeping area within a Two-Unit House". A "cooking facility" does not specifically require a stove for cooking meals as hot meals can be prepared in many ways. For example, hot meals could be prepared with a hot plate, microwave, rice cooker, or toaster oven, or other small electrical cooking appliances or devices. Property Standards Officer Mohammed had observed a microwave and other small appliances on January 4, 2018, and items in the kitchen in the basement, such as plates, cutlery, cups, and can foods, that indicate that meals were being prepared or could be prepared in the basement kitchen. Shah Islam also testified that he and his wife were residing in the basement. In addition, Mohammed had observed on January 4, 2018, that the main floor and the second floor of the house at 35 Delphinium Way were devoid of any furniture or evidence that anyone was residing on the main floor and second floor. Also, from the photographs taken by Officer Mohammed on January 4, 2018 (see Exhibit #8) it can be observed that the main floor kitchen did not contain any food stuffs, plates, cups, or any other items or evidence that anyone was using the main floor kitchen to prepare or cook meals. Furthermore, the main floor and second floor were also extremely clean and devoid of any items or furniture so that it had the appearance of an apartment that had been ready to be rented out to a tenant.

[131] Ergo, the prosecution does not have to prove there is a stove in the basement or second unit to prove the rooms in the basement of the defendants' house at 35 Delphinium Way were a separate self-contained residential dwelling unit or second unit on January 4, 2018. There had been indeed evidence which showed that hot meals could have been prepared in the basement kitchen by people residing in the basement using the microwave and other small appliances so that they did not have to share or use the kitchen on the main floor to prepare hot meals. Therefore, in the circumstances and from the evidence, the prosecution has proven beyond a reasonable doubt that there had been a "separate residential dwelling unit" or "second unit" in the basement of the defendants' house at 35 Delphinium Way on January 4, 2018, even when there was no stove in the basement kitchen.

(iii) Does the prosecution have to prove there was a tenant residing in an accessory self-contained dwelling unit in the house at 35 Delphinium Way on January 4, 2018 to prove the house contained a "second unit" beyond a reasonable doubt?

[132] Section 6 of the Brampton Second Unit Registration By-law No. 87-2015 only requires the prosecution to prove any one of the three alternative circumstances set out in that provision to establish that the defendants had failed to register their Two-Unit House containing a second unit when they were legal obligated to under s. 7 of the Registration By-law. In other words, the prosecution has to only prove beyond a reasonable doubt that one of those three alternative circumstances had occurred, (1) whether the defendants had "established a second unit", (2) whether the defendants had "operated a second unit", or (3) whether the defendants had "permitted the occupation of the second unit".

[133] Therefore, proving that a "second unit" had been physically "established" in the defendant's house does not require proof that the second unit was rented to a tenant or that one of the two residential dwelling units in the defendants' house had been rented out to a tenant while the owners were occupying the other residential unit. The prosecution only has to prove that a "self-contained residential dwelling unit" or "second unit" with a kitchen for preparing meals, a room for sleeping and a bathroom for sanitary had been physically "established" in the house to prove beyond a reasonable doubt that the house at 35 Delphinium Way is a Two-Unit House containing a second unit. Ergo, for the first circumstance of proving beyond a reasonable doubt that a second unit had been physically "established" in the defendants' house would not require proof of the existence of tenant.

[134] On the other hand, for the other two alternative circumstances contained in s. 6 of Brampton Second Unit Registration Bylaw No. 87-2015, of "operating a second unit" or of "permitting the occupation of a second unit, it may be necessary for the prosecution to prove the existence of a tenant, but such is not required in order to prove the circumstance that a "second unit" had been physically "established" in a house.

[135] Consequently, to prove beyond a reasonable doubt that both defendants had committed the offence set out in count #1 in their respective informations, the prosecution only had to prove that the property at 35 Delphinium Way, which is zoned as a single detached residential dwelling, was not being used on January 4, 2018, as a "single detached residential dwelling unit" as legally required, but as a "Two-Unit House", by proving that the house had physically contained a "second unit" which had not been legally approved of by the City of Brampton and in which 3 off-street parking spaces had not been provided on the defendant's property, and in which the defendants had failed to register their Two-Unit House containing a second unit with the City of Brampton. Property Standards Officer Mohammed's testimony that he had observed that in the basement of the defendants' house there had been a self-contained residential dwelling unit with a kitchen for preparing meals, a bathroom for sanitary, and a room for sleeping is proof beyond a reasonable doubt that the defendants had "established" a "second unit" in their house, so that their house was no longer being used as a single detached residential dwelling unit, but as a Two-Unit House containing a second unit, which "use" is contrary to ss. 10.16 and 13.4, and s. 3459 of Schedule A of Brampton Zoning By-law No. 270-2004.

[136] In addition, Shah Islam had suggested to Mohammed in cross-examination that Mohammed had looked through a main floor window while his female tenant had been naked, for which Mohammed had denied ever looking through a main floor window. Although this is not evidence that there had been a female tenant living on the main floor of the house on one of the days on which Mohammed had attended at the house, it certainly suggests that someone may have rented some part of the house at 35 Delphinium Way. However, this does not prove that the female tenant, if any, would have been either living in a self-contained dwelling unit in the basement or that the female tenant had been sharing the entire house with the defendants.

[137] As such, the prosecution has proven that there is a "second unit", which is an accessory, self-contained dwelling unit that had been physically "established" in the basement of the house at 35 Delphinium Way on January 4, 2018. When coupled with the evidence that the main floor and second floor were devoid of furniture and other items, that there was tape on the door leading to the basement from the main floor and that the door could not be opened or unlocked except from the basement side of the door, and evidence that the defendants were residing in the basement is proof beyond a reasonable doubt that the basement contained an "accessory self-contained dwelling unit" and that the defendants had established a "second unit" in the basement of their house on January 4, 2018, and which had not been registered with the City of Brampton as a Two-Unit house with a second unit on January 4, 2018.

(iv) Is the fact that the homeowners were themselves living in the basement mean that the prosecution has failed to prove beyond a reasonable doubt that there is an "accessory self-contained dwelling unit" or "second unit" in the house at 35 Delphinium Way on January 4, 2018?

[138] Ontario's Planning Act, R.S.O. 1990, c. P.13 does not permit zoning to have the effect of distinguishing on the basis of relationship. As such, zoning by-laws, such as Brampton Zoning By-law No. 270-2004 would permit occupancy of the primary or second unit regardless of whether or not the owner of the home is a resident of either unit. Furthermore, the "second unit" provisions in s. 10.16 of Brampton Zoning By-law No. 270-2004 does not require establishing occupancy for either the primary or second unit as evidence of a Two-Unit House or as evidence that a house has two separate residential dwelling units.

[139] Ergo, it does not matter whether a homeowner lives in the second unit or in the basement apartment of the house or in the principal unit of a Two-Unit House as there is no legal requirement to establish occupancy of either the principal unit or the second unit of a Two-Unit House, nor is the prosecution required to prove that a tenant is residing in the second unit, to prove that a "second unit" has been physically "established" in the house. As a consequence, a tenant can live in the second unit or the principal unit and the homeowner could also reside in the second unit or the principal unit, since the prosecution is only required to prove there are two separate self-contained residential dwelling units in a house to prove beyond a reasonable doubt the house is a Two-Unit House. Nor does there even have to be proof beyond a reasonable doubt there is a tenant residing in the house, as long as the prosecution has proven beyond a reasonable doubt that there are two self-contained residential dwelling units in the house at 35 Delphinium Way to establish the defendants' house is a Two-Unit House containing a second unit, where either the second unit or the principal unit could be rented out or occupied at any time.

(v) If the homeowners were only sharing the entire house with a tenant, would this mean that the prosecution has failed to prove beyond a reasonable doubt that there is an accessory self-contained dwelling unit or second unit in the house at 35 Delphinium Way on January 4, 2018?

[140] On the question of whether the defendants were sharing their house with a tenant, there is no evidence that there was a tenant residing at 35 Delphinium Way on January 4, 2018. In addition, the opposite had been observed by Property Standards Officer Mohammed, who had observed that the main floor and second floor of the house were devoid of any furniture or any items. Mohammed also said he had not observed any food items, dishes, cutlery in the main floor kitchen and only observed such things in the basement kitchen.

[141] On the other hand, Shah Islam had also said that when they did have a tenant that the defendants' had shared their house with the tenant, so that there would not be two separate self-contained residential units in their house, and that it had only been the last potential tenant, who did not actually move in, who had wanted to have the door leading to the basement located on the main floor blocked off and the main floor and second floor separated from the basement.

[142] Shah Islam also said that the tenant who was supposed to have moved in, had not in fact moved in, and had on the day before Property Standards Officer Mohammed had inspected the defendants' house on January 4, 2018, had moved out all the furniture and items that had been moved in previously. Shah Islam has also said there had been a dispute between the defendants and the prospective tenant about sharing the house and that the proposed tenant had wanted to have the door leading to the basement located on the main floor locked or blocked off so that people from the basement could not use that door to enter onto the main floor.

[143] However, Shah Islam said that he was trying to accomplish what the proposed tenant had wanted and requested, and had tried to do it using the cheapest method by affixing scotch tape to that door on the main floor side, so that escape could still be done from the basement through that door in case of an emergency.

[144] Ergo, there is no evidence that a tenant had been residing in the defendants' house at 35 Delphinium Way, on January 4, 2018. And, even if there had been, the evidence of the tape of the door leading to the basement and Shah Islam being unable to unlock that door for Property Standards Officer Mohammed, and that entry into the basement could only be accomplished by entering through the garage to access the door leading to the basement is not indicative that the defendants were sharing their house with a tenant, but is evidence that the basement apartment was a separate self-contained residential unit or second unit in a Two-Unit House on January 4, 2018.

(vi) Conclusion on Count #1

[145] In short, the prosecution has proven beyond a reasonable doubt that both of the defendants, Tasmin Chowdhury and Shah Islam, were the registered owners of the house located at 35 Delphinium Way on January 4, 2018 (see Exhibit #4). Furthermore, the prosecution has proven beyond a reasonable doubt that the defendants' house at 35 Delphinium Way was zoned as a "single detached residential dwelling" and that the defendant's house was being unlawfully used on January 4, 2018, as a "Two-Unit House", as defined under s. 5 of the Brampton Zoning By-law No. 270-2004, by having two self-contained residential dwelling units which comprise of the principal unit consisting of the main floor and the second floor of the house and the "second unit" which was the residential dwelling unit in the basement of the house. Moreover, the prosecution has proven that the defendants did not register their Two-Unit House containing the second unit with the City of Brampton or obtain approval from the City of Brampton Building Division to establish a self-contained basement apartment to be used as the "second residential dwelling unit" in the defendants' house at 35 Delphinium Way, nor did the defendants apply for a building permit before the defendants had established the basement apartment as a "second unit" in their house, nor did the defendants have their house or basement apartment inspected and approved for compliance with the Fire, Building, Electrical, and Plumbing Codes of Ontario to ensure public safety and health, before or on January 4, 2018.

[146] Therefore, the prosecution has proven beyond a reasonable doubt that both defendants have committed the offence of using or permitting the use of lands for purposes not permitted by ss. 10.16 and 13.4, and s. 3459 of Schedule A of Brampton By-Law Zoning By-law No. 270-2004, by establishing a second dwelling unit in the defendants' house at 35 Delphinium Way, Brampton on or about January 4, 2018.

[147] Accordingly, the prosecution has proven beyond a reasonable doubt that both defendants have committed the offence set out in count #1 in their respective informations by contravening ss. 10.16 and 13.4, and s. 3459 of Schedule A of Brampton By-Law Zoning By-law No. 270-2004, and thereby both defendants have committed an offence under s. 67(1) of the Planning Act, R.S.O. 1990, c. P.13.

[148] In addition, the defendants have not proven on a balance of probabilities that they had a due diligence defence in respect to the offence of "using or permitting the use of lands for purposes not permitted by ss. 10.16 and 13.4, and s. 3459 of Schedule A of Brampton By-Law Zoning By-law No. 270-2004, by establishing a second dwelling unit in the defendants' house at 35 Delphinium Way, Brampton on January 4, 2018. In that respect, Shah Islam had testified that he had wanted to legalize the basement apartment, but could not afford to do so because constructing the required separate egress for the basement through the concrete wall of the house was just too expensive to do. Therefore, the defendants have not proven that they had taken all reasonable care or all reasonable steps in the circumstances to avoid contravening Brampton Zoning By-law No. 270-2004 by using or permitting their house at 35 Delphinium Way, Brampton on January 4, 2018 as a Two-Unit House containing a second unit when their house had been zoned as a "single detached residential dwelling" under Brampton Zoning By-law 270-2004.

(C) Count #2 – failing to register a Second Unit in a Two Unit House, contrary to s. 6 of Brampton Second Unit Registration By-law No. 87-2015

[149] Both defendants, as the registered owners of 35 Delphinium Way, have also been charged in count #2 of their respective informations of committing the offence of "failing to register a second unit in a Two-Unit house" with the City of Brampton, which is contrary to s. 6 of City of Brampton Second Unit Registration By-law No. 87-2015:

PART IV – REGISTRATION

6. No Person shall establish, operate or permit the occupancy of a Second Unit, unless the Two-Unit House containing that Second Unit is registered in accordance with the requirements of this By-law.

[150] Moreover, s. 7 of Brampton Second Unit Registration By-law No. 87-2015 legally obligates the person who establishes, operates or permits the occupancy of a Second Unit in a house to register the Two-Unit House containing that Second Unit with the City of Brampton:

7. Every Person who establishes, operates or permits the occupancy of a Second Unit shall register the Two-Unit House containing that Second Unit as required by this By-law.

[151] In addition, according to s. 2 . of Brampton Second Unit Registration By-law No. 87-2015, the By-law is to apply to all property within the City of Brampton:

2. This By-law applies to all property within the City of Brampton.

[152] Furthermore, under the definition section contained in s. 5. of Brampton Second Unit Registration By-law No. 87-2015, "owner" means a person who is the registered owner of a Two-Unit House:

5. For the purpose of this By-law:

"Owner" means a Person, who is:

(a) the registered owner of a Two-Unit House;

[153] Also, under the definition section contained in s. 5. of Brampton Second Unit Registration By-law No. 87-2015, "second unit" is defined as "an accessory self-contained residential dwelling unit with its own cooking facility, sanitary facility and sleeping area within a Two-Unit House" while a "Two-Unit House" is defined as "a detached house, semi-detached house or row house comprising two residential dwelling units":

"Second Unit" means an accessory self-contained residential dwelling unit with its own cooking facility, sanitary facility and sleeping area within a Two-Unit House; and

"Two-Unit House" means a detached house, semi-detached house or row house comprising two residential dwelling units.

[154] To reiterate, the prosecution has proven beyond a reasonable doubt that the house at 35 Delphinium Way, Brampton on January 4, 2018, had contained a self-contained apartment or residential unit in the basement of the house that had its "own cooking facility, sanitary facility and sleeping area", and which could not be entered through the door leading into the basement on the main floor because it had been locked and sealed off with tape. In addition, the prosecution has proven that a second and separate self-contained residential dwelling unit (the primary unit) was located on the main floor and second floor of the house at 35 Delphinium Way, which also contained a bathroom and bedrooms on the second floor, and a kitchen with a stove on the main floor. As a result, the house at 35 Delphinium Way had two self-contained residential dwelling units on January 4, 2018, based on Property Standards Officer Mohammed testimony and observations that he had made after he had entered the defendants' house to conduct an inspection and had observed two self-contained dwelling units had been "established" in the house, that Mohammed had also verified with the photographs he had taken of the defendants' house on January 4, 2018 (see Exhibit #8).

[155] Furthermore, Property Standards Officer Mohammed had testified that the property located at 35 Delphinium Way, Brampton had not been registered in the Brampton computer systems as a Two-Unit House with a Second Unit on January 4, 2018, or at any time before that date.

(1) Conclusion on Count #2

[156] In sum, the prosecution has proven beyond a reasonable doubt that both of the defendants, Tasmin Chowdhury and Shah Islam, were the registered owners of the house located at 35 Delphinium Way on January 4, 2018 (see Exhibit #4). In addition, the prosecution has proven beyond a reasonable doubt that a "second unit", as defined under s. 5 of the Brampton Second Unit Registration By-law No. 87-2015, had been "established" in the defendants' house at 35 Delphinium Way on January 4, 2018, and that defendants' Two-Unit House containing a second unit or that the Second Unit in that Two-Unit House had not been registered with the City of Brampton as legally required under s. 7 of Brampton Second Unit Registration By-law No. 87-2015, as of the date of January 4, 2018. Accordingly, the prosecution has proven beyond a reasonable doubt that both defendants have committed the offence set out in count #2 in their respective informations by failing to register with the City of Brampton their Two-Unit House containing a second unit at 35 Delphinium Way, Brampton, on January 4, 2018, contrary to s. 6 of Brampton Second Unit Registration By-law No. 87-2015.

[157] Furthermore, no due diligence defence in respect to the offence of "failing to register their Two-Unit House containing a second unit" has been proven on a balance of probabilities by the defendants. In that respect, Shah Islam had testified that he had wanted to legalize the basement apartment, but could not afford to do so because constructing the required separate egress for the basement through the concrete wall of the house was just too expensive to do. Therefore, the defendants have not proven that they had taken all reasonable care or all reasonable steps in the circumstances to avoid committing the offence under s. 6 of Brampton Second Unit Registration By-law No. 87-2015 of failing to register with the City of Brampton their Two-Unit House containing a second unit.

8. Disposition

[158] Accordingly, based on the totality of the evidence, the prosecution has proven beyond a reasonable doubt that both defendants, Tasmin Chowdhury and Shah Islam, have committed their respective offences set out in counts #1 and #2 of their respective informations.

[159] Therefore, convictions will be entered against Tasmin Chowdhury in respect to counts #1 and #2 on Information No. 6302. In addition, convictions will be entered against Shah Islam in respect to counts #1 and #2 on Information No. 6303.

Dated at the City of Brampton on October 2, 2019.

QUON J.P.

Ontario Court of Justice

Footnotes

[1] Pam Douglas, "Two have died in illegal basement apartment fires in Brampton since 2016", Brampton Guardian (April 30, 2019), bramptonguardian.com website, online: https://www.bramptonguardian.com/news-story/9300084-two-have-died-in-illegal-basement-apartment-fires-in-brampton-since-2016/. The news article states there are 3500 legal, registered basement apartments in Brampton and likely many more illegal apartments in the city:

There are more than 3,500 legal, registered basement apartments in Brampton.

…

All seem to agree there are likely many more illegal apartments in the city, but no one knows exactly how many or where they are.

"To be honest with you, we don't know," said John Avbar, the city's manager of enforcement. "I wouldn't even want to guess."

He said he has heard an estimate of 30,000, but there is no documentation to support that number, so it really is just a guess.

But the 3,500 registered units are only the tip of the iceberg, city officials agree.

The city receives more than 2,000 complaints a year reporting illegal basement apartments. Of those, 75 per cent are valid complaints, he said.

[2] Ibid. The news article states there have been 32 fires and 2 deaths in illegal basement apartments since 2016:

Basement apartments are a crucial resource in a city where affordable housing is scarce.

They can also be death traps.

In the past three years, 32 fires have occurred in illegal basement apartments in Brampton. Two people have died; five have been injured. …

[3] Subsection 8(1) of the Strong Communities through Affordable Housing Act, 2011 provided that ss. 1 and 7 of Schedule 2 would come into force on the date that the Act received Royal Assent, which was on May 4, 2011. However, s. 8(2) of the Act provided that ss. 2 to 6 of Schedule 2 which pertained to "second units" would come into force on a day to be named by proclamation of the Lieutenant Governor, which was on January 1, 2012 (Ont. Gazette. 2011, p. 2046).